Monday, August 22, 2011

Another Failure to Conciliate Attorneys Fees Award against the EEOC

Gavel The EEOC has been hit with another large attorneys fees award ($2.6 million) for filing suit on behalf of plaintiffs without seeking conciliation first. In EEOC v. Cintas, the EEOC brought an action under 42 U.S.C. § 2000e-5 (§ 706 for those who like the section numbers of the public law instead) on behalf of a named plaintiff and a class of women. It's motion to certify the class was denied, and a motion to amend the complaint to a pattern and practice case (§ 2000e-6 or § 707 for those playing along at home) was also denied. The EEOC eventually named specific women it was suing on behalf of, eventually ending up with thirteen.

Because the EEOC did not attempt to conciliate on behalf of these thirteen women before it filed the action in the first place, the district court dismissed the action. See EEOC-V-Cintas-opinion. Because of this failure and other failures of the EEOC to cooperate during litigation, the court has granted this $2.6 million fee award against the EEOC. The court relied heavily on Judge Reade's decision in a similar case, EEOC v. CRST, decided last year.

These decisions seem to be hancuffing the EEOC in significant ways, limiting the ways the agency can seek class-wide relief, and elevating the conciliation requirement to a pretty high hurdle in any case that is not brought on behalf of a single individual. It's yet another obstacle to structural cases, and I can't help but think that it will totally frustrate the EEOC's ability to focus on systemic cases (part of its agency agenda) in its attempts to maximize enforcement of the employment discrimination laws while minimizing its caseload for the greatest amount of enforcement per federal dollar.


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Interesting. I wonder what is really going on at the agency level. Hard to believe they are just not doing something they know they have to do. I'm wondering if there is something about the conciliation process that is rendering claimants and/or witnesses vulnerable to employer action very early in litigation. This would be especially problematic if the work forces in question are composed substantially of immigrants. I see that the EEOC argued that conciliation in a prior related case satisfied the conciliation requirement in this case and the court rejected the claim. But there is definitely more here than meets the eye. I would think that the EEOC will now either create a separate conciliation unit, if it does not have one now; or beef up whatever such structures may be in existence.

Posted by: Michael C. Duff | Aug 24, 2011 7:06:09 AM

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