An African American delivery driver was the victim of racial name-calling, and was exposed to a noose hanging in the workplace which the manager refused to remove.  The EEOC issued a Letter of Determination finding probable cause of racial harassment in violation of Title VII. 

After what the Court called “failed conciliation attempts,” the EEOC filed a lawsuit, which the company sought to have dismissed, arguing that the EEOC had not fulfilled its statutory duty to conduct conciliation proceedings in good faith.



What does the EEOC’s duty to “conciliate” mean?


The EEOC is required under Title VII to “endeavor to eliminate” any unlawful employment practice as alleged by the charging party, “by informal methods of conference, conciliation, and persuasion.”  See section 5(b).   But before it files a lawsuit, how much must the EEOC do to be said to have attempted to conciliate? And can an employer get a lawsuit dismissed if the EEOC did not try to conciliate “in good faith?”     

In the lawsuit discussed in this blog, the Court held that although the conciliation requirement is not “jurisdictional” (that is, it is not a pre-requisite for the Court to even hear the case), nonetheless the EEOC’s conciliation requirement must still be complied with “in good faith” or else the case may be subject to dismissal.  




But what constitutes good faith?


Is any colorable attempt at conciliation sufficient to be called "good faith"?  The EEOC does not act in good faith by simply “making a take-it-or-leave-it demand” settlement offer, but this case was different: it was “Defendant’s refusal to make any counteroffer that resulted in the EEOC’s termination of conciliation attempts as futile. If Defendant was unsatisfied with the EEOC’s offer based upon the evidence, it could have made a counteroffer for a token sum. If the EEOC had refused to budge, perhaps the Court could then determine that there was no good faith conciliation attempt. But Defendant refused to make any counteroffer at all.”


The Court concluded that “Defendant’s continued refusal to make any counteroffer when repeatedly solicited for one makes it impossible for the Court to determine that the EEOC was not prepared to conciliate in good faith.”


The Court therefore declined to dismiss the case.





Unless the employer bargains in good faith in the conciliation process, even by making a “token” offer or counter-offer, a court is unlikely to dismiss a lawsuit by concluding that the EEOC breached its duty to conciliate in good faith.