The Next Half-Century: Ways For the EEOC To Improve On How It Does What It Does
By Michael Moore and Amanda Fray · January 5, 2016 · 2016 Ark. L. Notes
In categories: Administrative Law, Alternative Dispute Resolution, Arkansas Law Notes, Constitutional Law, Corporate and In-House Counsel, Disability Law, Elder Law, Featured Story, Government Practice
The Equal Employment Opportunity Commission (“EEOC”) has done a remarkable job in its first half-century developing an enforcement process that resolves hundreds of thousands of charges, and results in compensation and other relief to many employees. Perhaps just as remarkable, the way the EEOC goes about its job, in general terms, engages employers in the process and has a positive impact on employee relations. The EEOC estimates that approximately 200,000 individuals contact it for assistance each year, and nearly 90,000 of those individuals go on to file a charge. In 2014, for example, the EEOC received a total of 88,778 charges. The EEOC filed 133 merit lawsuits in the same year and, in addition to these new filings, resolved 136 merit lawsuits in the federal district courts for a monetary recovery of approximately $22.5 million.
As well as the EEOC has done its job in the first half-century, there is always room for improvement. As the EEOC looks forward to its second half-century, it is worth taking a moment to examine the tools it has in place and consider whether some of these tools, and the manner in which they are used, should be adjusted to better fulfill the goals of the EEOC. Because a comprehensive discussion of each potential avenue for improvement is simply not feasible, this note will focus on two specific aspects of the EEOC process: investigation and conciliation. Specifically, it will discuss the ways in which increased transparency and direct contact between EEOC investigators and the parties could streamline both processes, lead to speedy resolution, and ultimately benefit everyone involved.
A. Equal Employment Opportunity Commission
The EEOC’s investigative process is relatively simple. When it gets a charge in, the normal procedure is to send a written notice to the employer with a request to respond to a generally nonspecific, stock list of questions, depending upon the nature of the charge. There is normally very little attempt to establish personal contact or interviews by the EEOC early in the investigative process.
The EEOC has, however, developed and utilized a variety of approaches to facilitate its investigations after the initial charge is made and responses are submitted. These tools are all effective in certain circumstances, but their use seems to depend largely upon the preference of the individual investigator handling the charge.
- Simple phone calls. These allow the investigator to communicate with, and gather information through, the respondent or respondent’s attorney.
- On-site investigations. The outlines of an on-site investigation are usually rather vague and look very similar to visits to company facilities by Wage and Hour Investigators. They may involve tours of the facility and interviews with company representatives.
- Fact Finding Conference. This tool is used by very few investigators, but is actually a very focused effort to reach a settlement of the charge.
- Written Requests for Further Information. This is an effective tool to narrow the issues for the charge so that irrelevant information is excluded from the investigation.
The EEOC also has generally been very good at sending predetermination letters to both charging parties and respondents. The letters state the position of the Commission, including why it believes the charge either has merit or is without merit, and asks the party to present any further information they have to support their position. This seems to be an especially important response to prepare by either a charging party or respondent. Charging parties who do not submit further information in response to such a letter, but who come up with additional evidence after they file suit are subject to significant cross-examination on this point. Respondents who fail to submit further information will be in a very difficult position during the conciliation process if there is a cause finding.
An internal evaluation of how the EEOC’s investigative process could be improved is particularly important, as the adequacy of these investigations are largely self-governed and beyond the scope of judicial review. “The sole question for judicial review is whether the EEOC conducted an investigation. . . . [C]ourts may not review the sufficiency of an investigation—only whether an investigation occurred.”
The Second Circuit recently and specifically noted that “[t]he EEOC need not . . . describe in detail every step it took or the evidence it uncovered. As with the conciliation process, an affidavit from the EEOC, stating that it performed its investigative obligations and outlining the steps taken to investigate the charges, will usually suffice.” Given this broad discretion, continual evaluation of ways in which the EEOC’s process may be improved is crucial.
While the EEOC’s process has certainly been effective, it could nonetheless benefit from considering the methods used by other sister agencies. A review of other agencies similarly charged with implementing workplace regulations reveals that they generally allow for the quick disposal of claims, complaints or charges the agency is able to deem non-meritorious in the early stages of investigation. This determination is generally made after the investigator has direct contact with the charging party and/or the respondent. While the standard questionnaire distributed by the EEOC certainly provides beneficial information, it may be worth considering a more personal, even aggressive, approach; either by adopting new tools or rethinking the way in which the tools outline above are implemented. A brief outline of the processes in place at these sister-agency illustrates this point and offers specific examples of investigative techniques that may be of equal use in the EEO charge process.
B. Department of Labor Wage and Hour Division
The U.S. Department of Labor’s Wage and Hour Division (“WHD)”) is responsible for ensuring that workers are properly paid for all hours worked. An employee or a third-party may initiate a complaint with the WHD by placing a call with its 800 number or visiting its website. The complaining party is then directed to the nearest WHD office, where he provides certain basic information such as his name, contact information, place of employment, type of work, and how and when he is paid. The complaint is then assigned to an investigator, who makes an initial determination about whether certain laws apply to an employer, and proceeds to investigate compliance.
While an investigator is not required to inform the employer of an investigation, they do, in many instances, give the employer notice that such an investigation is imminent. With or without such notification, “[t]he investigator has sufficient latitude to initiate unannounced investigations in many cases in order to directly observe normal business operations and develop factual information accordingly.” An investigator may also visit an employer to provide information about the application of, and compliance with, labor laws administered by the WHD.
Investigators do not typically disclose the reason for the investigation, and all complaints remain confidential. The investigation itself may consist of several different steps, including:
- Examining records to determine which regulations apply;
- Examining time cards or payroll records;
- Conducting private interviews with employees; and
- Meeting with the employer to go over any alleged violations of the law, discuss the results of the investigation and review steps required for compliance, if any.
If, after the investigative process is complete, the WHD finds that wages are owed, it may supervise the repayment, enter into a settlement agreement, or initiate litigation. The independence WHD investigators are given to independently and informally investigate claims of a legal violation is something that could be equally beneficial in the investigation of an EEO charge. The standard questionnaire used by the EEOC provides helpful information, but only after an employer is often required to spend significant time providing relevant documents and developing a formal position statement. While this use of resources may certainly be necessary in meritorious cases, allowing preliminary, investigative conversations directly with the parties involved may help weed through and quickly dispose of charges that can be easily resolved.
C. National Labor Relations Board
The National Labor Relations Board (“NLRB”) is responsible for “safeguard[ing] employees’ rights to organize and  determin[ing] whether to have unions as their bargaining representatives.” An employee or union may file a change with the NLRB alleging one of several unfair labor practices described in section 8 of the National Labor Relations Act. Board agents investigate the charge by gathering evidence or taking affidavits from parties and witnesses. Their findings are evaluated by the Regional Director. Novel or significant cases may then also be reviewed by the Division of Advice in Washington D.C. When the evidence is sufficient to support a charge, the parties often move into settlement discussions. If no settlement is reached, the agency issues a complaint.
Issuance of the complaint leads to a hearing before an NLRB Administrative Law Judge (unless a settlement is reached in the interim). The NLRB cannot assess penalties, but can seek make-whole remedies, such as reinstatement and backpay for discharged workers. Similarly, early discussions between the EEOC investigator and the decision makers might facilitate a speedy resolution.
D. Occupational Safety and Health Administration (OSHA)
The Occupational Safety and Health Administration (“OSHA”) was created to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” The initial OSHA complaint form asks for basic information, such as: the employer’s name, site location, mailing address, the name of a management official, telephone number, type of business, and a description of the hazard, including its location, the number of employees potentially exposed or threatened, and whether the condition has been brought to the attention of the employer or another government agency.
OSHA will then decide to investigate the complaint via an off-site investigation or an on-site inspection. An on-site inspection will likely result where the employee’s written complaint contains at least one of the following:
- Detailed information indicating that a hazard creating physical harm or imminent danger likely exists;
- An allegation that someone has been physically harmed by a hazard that continues to exist;
- A complaint concerning either an industry or hazard formally prioritized by OSHA in one of its national or local emphasis programs;
- Alleged failure of an employer to adequately respond after receiving notice of an investigation;
- Allegations against an employer who has, within the past three years, engaged in “egregious” or “willful” violation of OSHA guidelines;
- A referral from a corresponding whistle blower investigation; or
- A complaint against a facility already scheduled for, or in the process of undergoing, and OSHA investigation.
Where the hazard is ongoing or eminent, OSHA may telephone the employer and follow up with a fax or letter describing the alleged hazard. The employer then has five days to respond. If OSHA is not satisfied with that response, it will move to an on-site inspection. On-site inspections are prioritized based on the hazards presented, and then handled on a first-come-first-serve basis.
The prioritization of legal violations that are allegedly ongoing and create the most risk to employees is a strategy that could create efficiency in the EEOC investigative process. The EEOC may also benefit from almost immediately giving respondents an opportunity to voluntarily remedy the alleged violation without going through the formal charge process. Through adoption of new tools or rethinking the way in which those currently available are used, the EEOC may increasingly be able to establish an amicable resolution of a charge early in the investigative process.
Similar to the investigative process, the conciliation process could benefits from an increased focused on communication and transparency. The conciliation process has caused more angst among participants in the EEOC process, and has caused more litigation involving the EEOC than possibly any other issue involving the EEOC’s process. Many companies have responded to an EEOC lawsuit by alleging that the EEOC has not engaged in the statutorily mandated conciliation process. If the EEOC is to be completely honest, they have been rather rigid in their approach to the conciliation process, refusing to discuss any issue they deem a “merit” issue.
The exact level of conciliation required of the EEOC before it is permitted to file a complaint against the employer has been the topic of extensive litigation and created a split in authority among the federal circuits. This is partially due to the fact that the statute requiring conciliation states only that, if the Commission finds reasonable cause to think the charging party’s allegations have merit, it must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” The statute does not provide specific requirements for the EEOC’s conciliation obligation. As the EEOC describes it, “Conciliation is a voluntary process, and the parties must agree to the resolution . . . . The EEOC is required by Title VII to attempt to resolve findings of discrimination on charges through conciliation.” What this attempt must actually look like, however, continues to be hotly contested.
In April of 2015, the Supreme Court finally offered further guidance. In Mach Mining, LLC v. EEOC, the Supreme Court specifically considered whether and to what extent courts may review the EEOC’s attempts to remedy unlawful workplace practices through informal methods such as conciliation, before filing suit. The Court concluded that the conciliation requirements are limited and, similar to the courts’ ability to review the instigative process, the level of judicial review available is minimal. 
The Mach Mining case began when a female petitioner alleged that Mach Mining refused to hire her as a coal miner due to her sex. The EEOC investigated and found cause to believe the charging party, and several similarly-situated females, were the victims of discrimination. The EEOC sent Mach Mining a letter containing its determination and inviting it to participate in informal methods of dispute resolution, including conciliation. The letter stated that a Commission representative would soon “contact [them] to begin the conciliation process.” The record was silent on what happened next, until about one year later when Mach Mining received “a second later stating that ‘conciliation efforts as are required by law have occurred and have been unsuccessful’ and that any further efforts would be ‘futile.’”
In the subsequent litigation, Mach Mining contested the assertion in the EEOC’s complaint that it had conciliated in good faith prior to filing suit and asked the court to review the overall reasonableness of the conciliation efforts, including whether the Commission had made a “sincere and reasonable effort to negotiate.” The EEOC, in response, moved for summary judgment on the issue, arguing that its conciliation efforts are not subject to judicial review and, in any event, were satisfied by the two letters sent to Mach Mining and included in the record.
After conflicting opinions and subsequent appeals from the Southern District of Illinois and Seventh Circuit, the Supreme Court first noted that there is a “strong presumption” favoring judicial review of federal agencies, rebuttable only when a statute contains language indicating that Congress wanted the agency to be self-policing. The Court pointed out that Title VII’s conciliation requirement is mandatory, not precatory, stating that the Commission “shall endeavor to eliminate [an] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”
While this mandatory requirement was not disputed, the EEOC argued that the lack of any standard of review language in Title VII indicated that judicial review of the EEOC’s conciliation efforts was not intended. As the EEOC’s argument went, this lack of any “judicially manageable criteria with which to review the EEOC’s efforts . . . demonstrate[d] [Congress’s] intention to preclude judicial review.”
The Court disagreed, noting that, while the extent of judicial review is undoubtedly limited, the court could intervene if the EEOC, for example, declined to make any conciliation efforts at all and instead filed suit against an employer immediately after finding reasonable cause. Such a maneuver would undoubtedly violate the conciliation required by Title VII and should be subject to at least minimal judicial review. Moreover, the Court found that the statutory language does provide “certain concrete standards pertaining to what that endeavor [to conciliate] must entail.” Specifically,
the EEOC, to meet the statutory condition, must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. If the Commission does not take those specified actions, it has not satisfied Title VII’s requirement to attempt conciliation. And in insisting that the Commission do so, as the statutory language directs, a court applies a manageable standard. 
While the Court did not doubt the EEOC’s trustworthiness or fidelity to law, it nonetheless recognized “that legal lapses and violations occur, and especially so when they have no consequence. This is why the Court has so long applied a strong presumption favoring judicial review of administrative action.”
Having concluded that at least some level of judicial review is appropriate, the Court then set out to define the boundaries of that review. The EEOC proposed only a facial examination of certain documents, a standard of review that would be satisfied by the “bookend” letters in this case: one announcing that conciliation efforts were to follow and one announcing that they had concluded. Mach Mining, in contrast, argued for a much deeper analysis of the EEOC’s efforts to conciliate, including consideration of whether the EEOC acted in good faith by (1) telling the employer the minimum award it would take to resolve the claim, (2) providing the factual and legal basis for its position, including the calculated basis for any monetary request, (3) refraining from take-it-or-leave-it offers, and instead going back and forth with the employer in order to allow consideration of each offer and counter-offer and appropriate time to respond.
The Court disagreed with, and cited errors in the positions of, both parties. First, the “bookend letters” relied on by the EEOC to establish that conciliation took place do not actually stand for that proposition. “The first declares only that the process will start soon, and the second only that it has concluded. The two letters, to be sure, may provide indirect evidence that conciliation efforts happened in the interim . . . [b]ut suppose an employer contests that statement.”
In contrast, Mach Mining’s in-depth review would undermine the intended flexibility evidenced in the language of Title VII’s conciliation provision; for example, the EEOC is required only to “endeavor” to conciliate. It is left entirely to the EEOC’s discretion how to accomplish that mission or decide when conciliation has failed and a lawsuit must be filed. Congress also granted the EEOC discretion over the pace and duration of conciliation efforts. Finally, Mach Mining’s standard of review could not be rectified with Title VII’s confidentiality requirements, stating that “nothing said or done during and as a part of such informal endeavors may be made public by the Commission . . . or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” As the Court pointed out, “the judicial inquiry Mach Mining proposes would necessitate the disclosure and use of such information in a later Title VII suit: How else could a court address an allegation that the EEOC failed to comply with all the negotiating rules Mach Mining espouses?”
After noting the flaws with both proffered approaches, the Court settled on a middle ground: in order for the EEOC to meet its statutory demands, it
must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives to it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.
Considering how each party can meet their obligations under the above standard, the Court noted that a sworn affidavit from the EEOC will generally suffice to show that it has attempted, but failed to achieve, conciliation. “If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.” Should the court be persuaded by the employer’s evidence, the appropriate remedy would be to order the EEOC to undertake the efforts mandated by Title VII, rather than dismissal of the lawsuit altogether.
While the Mach Mining opinion offered some much-needed guidance, it has not entirely put this debate to rest. Defense counsel has complained loudly about what they consider to be unrealistic tactics used by the EEOC in the conciliation process. The most prominent complaint is the above-mentioned refusal to talk about the merits of the case, even though in all settlement discussions in private litigation under Title VII, the parties will discount a claim in small or large part depending upon the relative merits. Defense counsel has also complained about the refusal to provide information by the EEOC regarding any subsequent employment or efforts at mitigation by a charging party. Obviously, if the matter went to litigation, this would be one of the first areas of a legitimate inquiry by a defendant. Nonetheless, in most cases, the EEOC seems at least hesitant to engage in such discussions. Finally, some charging party counsel have complained that they are left out of the conciliation process, and that if they were able to engage in discussions with a defendant, they would be able to get the matter resolved quickly.
It would seem that the conciliation process could be made more successful by drawing on some of the tools used by the EEOC during the investigation process. Obviously, unsuccessful conciliation results in a direct cost to the taxpayer, and significant direct and indirect costs to all of the litigants who will be involved in any subsequent lawsuit. A prompt resolution all parties can live with is, therefore, certainly a goal worth pursuing.
The EEOC has certainly done a commendable job protecting the rights of employees, and often educating employers, in its first half-century of existence. Both of these goals, however, could be better served by an increased focus on early, direct and transparent communication in both the investigation and conciliation processes.
 See EEOC, Fiscal Year 2014 Performance and Accountability Report, http://www.eeoc.gov/eeoc/plan/2014par_performance.cfm.
 Merit suits “include direct suits and interventions alleging violations of the substantive provisions of the statutes enforce by the Commission and suits to enforce administrative settlements.” EEOC Litigation Statics, FY 1997 through FY 2014, http://www.eeoc.gov/eeoc/statistics/enforcement/litigation.cfm.
 EEOC v. Sterling Jewelers Inc., No. 14-1782, 2015 U.S. App. LEXIS 15986 (2d Cir. Sept. 9, 2015); see also EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir. 1984); EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 674 (8th Cir. 2012).
 Id. at *11; but see EEOC v. Pierce Packing Co., 669 F.2d 605, 606 (9th Cir. 1982) (holding that the EEOC failed to conduct an adequate pre-suit investigation where it “obtain[ed] the results of [a two-week Department of Labor] investigation,” and “did not conduct an independent investigation.”); EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 674 (8th Cir. 2012) (holding that the EEOC did not fulfill its investigative obligation where it “did not investigate the specific allegations of any of the 67 allegedly aggrieved persons . . . until after the Complaint was filed.”).
 United States Department of Labor, How to File a Complaint, http://www.dol.gov/wecanhelp/howtofilecomplaint.htm.
 United States Department of Labor, WHD Fact Sheet #44: Visits to Employers (January 2015), available at http://www.dol.gov/whd/regs/compliance/whdfs44.htm.
 National Labor Relations Board, The NLRB Process, https://www.nlrb.gov/resources/nlrb-process.
 National Labor Relations Board, Investigate Charges, https://www.nlrb.gov/what-we-do/investigate-charges.
 National Labor Relations Board, The NLRB Process, https://www.nlrb.gov/resources/nlrb-process.
 United States Department of Labor, About OSHA, https://www.osha.gov/about.html.
 United States Department of Labor, Filing a Complaint, https://www.osha.gov/as/opa/worker/complain.html.
 United States Department of Labor, Federal OSHA Complaint Handling Process, https://www.osha.gov/as/opa/worker/handling.html.
 42 U.S.C. § 2000(e)-5(b).
 U.S. Equal Employment Opportunity Commission, What You Should Know: The EEOC, Conciliation, and Litigation, http://www.eeoc.gov/eeoc/newsroom/wysk/conciliation_litigation.cfm.
 Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1649 (2015).
 Id. at 1656.
 Id. at 1650.
 Id. at 1651.
 Id. at 1651 (emphasis added) (alteration in the original).
 Id. at 1652 (internal alterations and quotations omitted).
 Id. at 1652.
 Id. at 1652.
 Id. at 1653-54.
 Id. at 1652.
 Id. at 1653.
 Id. at 1653-54.
 Id. at 1653.
 Id. at 1653.
 Id. at 1654.
 Id. at 1655 (quoting 42 U.S.C. § 2000e-5(b)).
 Id. at 1655.
 Id. at 1655-56.
 Id. at 1656.
 Id. at 1648.
 For example, in light of the Mach Mining opinion, the EEOC has attempted to revive a claim and $4.7 million award against CRST Van Expedited Inc., arguing that the Eighth Circuit’s previous dismissal of the case for failure to conciliate conflicts with the requirements offered by the Supreme Court opinion. See Ben James, CRST Fights EEOC Bid To Revive Sexual Harassment Claims, Law 360, http://www.law360.com/articles/684306/crst-fights-eeoc-bid-to-revive-sexual-harassment-claims; EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012). The parties’ previous dispute over the EEOC’s obligation to conciliate was reshaped, but certainly not resolved, by the Mach Mining opinion. See also, EEOC v. OhioHealth Corp., No. 2:13-cv-780, 2015 U.S. Dist. LEXIS 84016 (S.D. Ohio June 29, 2015); EEOC v. JetStream Ground Servs., No. 12-cv-02340-CMA-KMT, 2015 U.S. Dist. LEXIS 131386 (D. Colo. Sept. 29, 2015).