What You Should Know: The EEOC, Conciliation, and Litigation

There has been recent interest in EEOC's conciliation and litigation.  The following information is intended to help explain the EEOC process. 

At the end of an investigation, the EEOC makes a determination on the merits of the charge.  If the EEOC concludes that the information obtained in the investigation does not establish a violation of the law, the person who filed the charge of discrimination will be issued a letter called a "Dismissal and Notice of Rights." This informs the person that he or she have the right to file a lawsuit in federal or state court within 90 days from the date of receipt of the letter.  The employer also receives a copy of this document.

If the EEOC determines there is reasonable cause to believe discrimination has occurred, both parties will be issued a "Letter of Determination" telling them that there is reason to believe that discrimination occurred.  The Letter of Determination invites the parties to join the agency in seeking to settle the charge through an informal and confidential process known as conciliation.  Conciliation is a voluntary process, and the parties must agree to the resolution - neither the EEOC nor the employer can be forced to accept particular terms.  The EEOC is required by Title VII to attempt to resolve findings of discrimination on charges through conciliation.  The EEOC strongly encourages the parties to take advantage of this opportunity to resolve the charge informally and before the EEOC considers the matter for litigation. Conciliation is an efficient, effective, and inexpensive method of resolving employment discrimination charges.

The EEOC takes its conciliation obligations seriously.  In fiscal year 2014, the EEOC successfully conciliated 1,031 cases.  In fact, the EEOC improved its rate of successful conciliations from 27% in fiscal year 2010 to 38% in fiscal year 2014.  The successful conciliation rate for systemic cases in fiscal year 2014 is even better -- with 47% of systemic investigations being resolved.  This means that more and more often employers are coming to the table after an investigation and resolving more complaints with conciliation agreements, without the need for protracted litigation.  It is important to note that even before conciliation efforts take place, over 14,000 charges are settled with EEOC or through private settlements each year.

More information for employers about the EEOC's mediation program and conciliation process can be found at http://www.eeoc.gov/employers/resolving.cfm. 

If conciliation fails, the EEOC must decide whether to sue the employer in court.  In fiscal year 2014, conciliation failed in 1,714 charges.  When deciding whether to file a lawsuit, the EEOC considers several factors, including the seriousness of the violation, the type of legal issues in the case, the wider impact the lawsuit could have on the agency's efforts to combat workplace discrimination, and the resources available to litigate the case effectively. Filing lawsuits is a last resort - the EEOC files suit in less than 8 percent of the cases where it believes discrimination occurred and conciliation was unsuccessful. 

In fiscal year 2014, the agency filed 133 lawsuits against employers accusing them of unlawful employment discrimination, including 105 on behalf of particular individuals and 28 on behalf of groups or classes of employees.  In that same time period, EEOC's legal staff resolved 136 of the lawsuits filed that year and previous years, for a total monetary recovery of $22.5 million. At the end of fiscal year 2014, the EEOC had 228 cases on its active docket, of which 57 (25 percent) involved challenges to class-wide or systemic discrimination. By any measure, the EEOC has compiled a remarkable record in court.  It achieved a favorable resolution in approximately 90 percent of all district court resolutions.