With the holidays rapidly approaching and my daughter and going on holiday break on the 19th, I am thinking that this might be my last substantive entry of the year. Next week’s entry is going to be on the greatest hits of 2016 for Understanding  the ADA. Before moving onto the blog entry for the week, I once again want to thank everyone who nominated and voted for me for the 2016 ABA Blawg 100. It is indeed an honor (only 100 of 4000 legal blogs were selected), to be in the ABA Blawg 100 for the third year in a row. I also want to give a shout out to some of the other bloggers that I regularly communicate with and read who also made the ABA blog 100 including: Robin Shea of the Employment and Labor Insider; and Eric Meyer of the Employer Handbook. John Hyman of the Ohio Employers Law Blog is not in the Blog 100 because he is already in the Hall of Fame and is also well worth a read. You can find all of them in my blog roll. I encourage everyone to look at the ABA Blog 100 as there are many good blogs there with a variety of practice areas. I am going to start looking at a few of them myself.

Turning to the case of the day, EEOC v. Western Distribution  , from the U.S. District Court of Colorado decided on November 21, 2016, the court was faced with the question of in light of Mach Mining, just what are the EEOC’s obligations with respect to conciliation and investigation. In Mach Mining, the United States Supreme Court held that while the EEOC had the obligation to engage in conciliation efforts prior to bringing suit, it didn’t take much for those efforts to be satisfied. Even so, Western Distribution claimed that the EEOC did not meet it conciliation and investigation obligations (Mach Mining did not address investigation obligations of the EEOC). The blog entry is divided into the categories of the court’s reasoning and takeaways. Feel free to read either or both of the categories.

I

Court’s Reasoning

The District Court of Colorado was having none of Western Distribution’s arguments for the following reasons:

  1. There is some debate about whether conciliation and investigation by the EEOC is a jurisdictional requirement. However, it doesn’t really matter, because even if those requirements are not jurisdictional, they are a condition precedent to the EEOC bringing suit.
  2. Mach Mining imposes minimal requirements on the EEOC with respect to conciliation requirements. In particular, the EEOC has to inform the employer about the specific allegations, which it typically does in the letter announcing the determination of reasonable cause. The EEOC must also try to engage the employer in some form of discussion, whether written or oral, in order to give the employer an opportunity to remedy the allegedly discriminatory practice. So, the issue is only whether the EEOC attempted to confer about a charge and not what happened during those discussions. Such a limited review allows for information exchanged during the conciliation process to remain confidential as required by statute.
  3. In this particular situation, the EEOC adequately participated in conciliation when it described which of the defendant’s policies it considered to violate the ADA, including: its policy of limiting medical leave to 12 weeks without providing reasonable accommodations; and its policy of refusing to provide reasonable accommodation for employees with disabilities. The EEOC also identified the class of employees suffering from the discrimination. It engaged the defendant in discussions about remedying the discriminatory practices by providing a settlement offer, meeting in person, and exchanging letters. The EEOC also filed an affidavit describing its investigations into the claims from 2012-2014. That affidavit demonstrates that EEOC discussed conciliation with the defendant, which was confirmed by Western Distribution iin its own affidavit.
  4. Good reasons exist for the Supreme Court’s decision making the conciliation process review bare-bones, including: giving the commission expansive discretion over the conciliation process; and allowing the EEOC to make its own decision whether it is appropriate to lay all its cards on the table.
  5. With respect to investigation, while Mach Mining did not address the proper scope of judicial review of the EEOC’s investigation process, some courts are concluding that the same reasoning of Mach Mining applies equally to investigation. That is, the only thing that could be reviewed, is whether an investigation occurred and not its sufficiency.
  6. The District Court said that it isn’t really an issue of just how far a court can go in reviewing the EEOC investigation process because in this situation by any standard the EEOC did its investigation process in this case, including: sending at least five requests for information to the defendant; reviewing the information received; interviewing employees potentially affected by the allegedly discriminatory practice; interviewing other employees of the defendant; affording the defendant the opportunity to provide any additional information it felt relevant; notifying the defendant long before it filed suit that its investigation had expanded beyond the five initial charging parties to be national in scope; and requesting and reviewing a list of employees together with the reason they left the company through 2014.
  7. The back-and-forth related to the conciliation process are confidential per statute, and therefore, are not subject to being reviewed by the court when it comes to assessing the EEOC’s conciliation obligations. To hold otherwise, would mess up the whole point of conciliation to begin with. The point of conciliation is to resolve discrimination claims informally in order to seek voluntary compliance and not to set up a defense for later. Such an approach can only be achieved if the parties know the statements they make in the conciliation process cannot come back to haunt them in litigation.

II

Takeaways:

  1. When it comes to conciliation, a court’s review of whether the EEOC has met those obligations is bare-bones i.e. limited to whether the employer was informed of the specific allegations by describing what the employer allegedly did and to whom and whether the EEOC tried to engage the employer in discussions about those allegations.
  2. It is an open question whether limited review applies to the investigation process as well. Certainly, the reasoning applicable to conciliation logically applies to investigations as well. One wonders whether the new incoming president would feel the same way, and we do have a new Justice to get on the court. That said, Mach Mining was a unanimous decision and the logic of imposing the same requirements on the investigation process as on the conciliation process seem to be inescapable, if not more so.
  3. I wonder considering the business background of the incoming president, whether the EEOC in the future will simply not take the risks of having the extent of its investigations challenged and will instead use this particular case as a template for what it needs to do when investigating claims. I could also see that should the EEOC fail to use this case as a template for its investigations, the employer might very well claim that the EEOC failed to meet its investigatory obligations.