Yesterday, Senate Republicans on the Health, Education, Labor and Pensions Committee issued a minority report criticizing the EEOC’s litigation tactics.  If anyone was wondering how the Republicans would come down on the issue, the title of the report says it all:  “EEOC:  An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities, and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency.”

29799241_sThe report is fairly scathing and focuses on several allegedly problem areas.  One focus of the report is the courts’ criticism of the EEOC for failing to conciliate matters before litigation as required.  The background of the criticism is the fact that courts have ordered the EEOC to pay attorneys’ fees in ten cases since 2011.  As some of you may know, Title VII allows for the “prevailing party” to recover attorneys’ fees. The law is not simply a “loser pays” scheme.  In order for a defendant to recover fees, the defendant must be able to show that the claim was basically frivolous, i.e., without legal or factual basis.

In response to criticisms regarding the conciliation process raised by litigants of the claims, the EEOC has taken the position that its conciliation process is not subject to judicial review.  It is merely for the court to determine whether conciliation took place and not whether conciliation methods were in fact done in good faith.  Most courts have rejected this argument, but thanks to a Seventh Circuit decision adopting the EEOC’s position, there is now a split in the circuits.  The case, Mach Mining v. EEOC, will be argued before the Supreme Court this term.

I, thankfully, have not had any probable cause findings at the EEOC in recent years. However, the last time I did have one, the conciliation process was not much of a “process.”  My client was presented with a take-it-or-leave-it demand of over $100,000, $50,000 of which was designated as attorneys’ fees.  When my client made a counter-offer, we were told that the mediation process was over.  In that case, the reason could have been as simple as the EEOC recognizing that this was a divide that was not going to be bridged (I think the counter-offer was in the low five figures).  However, litigants have complained that in lawsuits that this type of “take it or leave it” approach is how the EEOC conducts conciliation.

There are always dangers of relying solely on a few anecdotal reports.  I have also heard from several of my colleagues that this has not been their experience and that the EEOC is more willing to continue to try to negotiate in the conciliation process.  It is questionable how much impact this minority report will have on the EEOC and their litigation tactics in any case.

We are curious, what do you think?  Do you think the EEOC conciliation process would bear up under court scrutiny?