EQUAL EMPLOYMENT OPPORTUNITY COMMISSION »
Bad faith conciliation backfires on agency

| June 11, 2012 | News & Comment

During the last couple of years, the Equal Employment Opportunity Commission has become more active in bringing employment discrimination suits against employers. That strategy has been most common in cases where the EEOC accuses an employer of some form of class-based wrongdoing and files an action against a company on behalf of multiple individuals. However, there is one requirement the EEOC must meet before it sues an employer: the Commission must first attempt to conciliate (i.e.: settle) a discrimination charge before filing a lawsuit. If it does not fulfill its conciliation duties, a later-filed lawsuit by the EEOC can run into trouble.

After receiving charges of sexual harassment from three employees at Evans Fruit in Sunnyside, Washington, the EEOC began an investigation. The Comission concluded that a class of female employees had been subjected to harassment by farm manager Juan Marin. After concluding harassment had occurred, the EEOC began its conciliation efforts and demanded that Evans Fruit pay $1.9 million to settle the matter. Obviously taken aback, the employer explained it was willing to put in place remedial measures and make some modest payment, but said the EEOC had not shown the employer any evidence that the farm manager had harassed a class of female employees. At that point the EEOC identified to the employer some of the harassment victims and stated crew leaders had also harassed employees. The EEOC lowered its settlement demand to $1 million. When Evans Fruit asked the EEOC to identify the other alleged harassers, the Commission declared that conciliation efforts were unsuccessful and filed a class action harassment lawsuit in federal court against Evans Fruit on behalf of 17 employees.

In order for conciliation to work, the employer must have the chance to consider and evaluate a settlement demand by the EEOC. The EEOC’s failure to provide the employer with more information about other alleged harassers robbed Evans Fruit of the ability to knowledgeably evaluate the sizable settlement demands made by the Commission. The judge found the Commission had not acted in good faith during the conciliation process. Evans Fruit is not out of the woods (fruit trees, get it?) yet. The case against the employer was not dismissed. It was put on hold, and the EEOC and Evans Fruit have been ordered to take part in court-supervised mediation of the harassment allegations.
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Charlie Plumb

About the author

Charlie Plumb is a labor and employment attorney with the McAfee & Taft law firm. He represents management in all phases of employment law and labor relations. Much of his practice is dedicated to counseling employers on compliance with a broad range of state and federal employment laws and regulations and educating management on best practices for avoiding disputes arising from the employer/employee relationship. He also has extensive litigation experience before federal and state courts, regulatory and administrative agencies, and in arbitration matters involving claims of discrimination, wrongful discharge, retaliatory discharge, breach of contract, and constitutional law violations.

As part of his labor practice, Charlie represents unionized employers in collective bargaining negotiations with labor unions, arbitrates grievances, and defends management against a variety of claims before the National Labor Relations Board and Department of Justice and in state and federal courts. He also represents employers who seek to maintain a non-unionized workforce by counseling management on union avoidance strategies and by providing training and advice to management and supervisors. His clients include numerous municipalities throughout Oklahoma and companies engaged in the manufacturing and distribution, construction, energy, public utility, technology and business services industries.

Charlie is a member of the American Bar Association’s Labor and Employment Law Section and the Oklahoma Bar Association’s Labor Council. He is also the designated representative of McAfee & Taft as the exclusive member firm representing Oklahoma in the Employers Counsel Network, a nationwide affiliation of leading law firms providing legal assistance and representation to employers.

Charlie is a frequent speaker and author on workplace issues. He is also co-editor of the Oklahoma Employment Law Letter, a monthly review of new court decisions, regulations and laws that affect state employers.

Charlie’s achievements have earned him inclusion in The Best Lawyers in America (labor and employment law), Oklahoma Super Lawyers (employment and labor, civil litigation defense), Benchmark Litigation and Chambers USA Guide to America’s Leading Lawyers for Business, where he has been lauded as “an impressive public speaker who utilizes his vast experience to effectively defend clients.” Researchers at Chambers & Partners also quoted market observers as admiring him for his “practicality of advice and specialized knowledge of complex legal issues,” with sources commenting that he “immediately commands respect, is always up to date and knows how to handle a problem.”

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