No Longer a Paper Tiger: the Eeoc and Its Statutory Duty to Conciliate

• Publication year: 2013

No Longer a Paper Tiger: The EEOC and Its Statutory Duty to Conciliate

Elizabeth Dunn

NO LONGER A PAPER TIGER: THE EEOC AND ITS STATUTORY DUTY TO CONCILIATE¹

Abstract

Congress created the Equal Employment Opportunity Commission to effectuate the ends of Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. To effectuate those ends, Congress vested the EEOC with authority to not only receive, investigate, and conciliate charges of employment discrimination, but also to enforce Title VII against private employers who discriminate by initiating suit against them.

After the EEOC receives a charge of employment discrimination, it must, after completing an investigation, attempt to conciliate the charge with a private employer accused of discrimination before initiating suit. The EEOC's "duty to conciliate is at the heart of Title VII, " so a critical question arises when the EEOC appears to violate its duty by, for instance, making egregious demands of an employer: what is the proper standard for reviewing whether the agency has satisfied its statutory duty to conciliate? The federal circuit courts of appeals are split between two standards of review—the deferential and the stringent standards of review.

This Comment argues that the deferential standard of review is inadequate to protect private employers from the EEOC's potential abuse of its statutory duty. Rather, the stringent standard is the proper standard, and it is consistent with the text, purpose, legislative history, and jurisprudence of Title VII.

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Introduction..............................................................................................457

I. Background....................................................................................459
II. The Circuit Split on the Proper Standard of Review.............461

A. The Deferential Standard of Review...........................................462
B. The Stringent Standard of Review..............................................464

III. A Critique of the Deferential Standard of Review................467
IV. The Stringent Standard of Review Is the Proper Standard..........................................................................................470

A. The Text of Title VII of the Civil Rights Act of 1964 Is Consistent with Adopting the Stringent Standard of Review......470
B. The Purpose of Title VII of the Civil Rights Act of 1964 Is Consistent with Adopting the Stringent Standard of Review......473
C. The Legislative History of Title VII of the Civil Rights Act of 1964 Is Consistent with Adopting the Stringent Standard of Review ........................................................................................ 475
D. The Supreme Court's Jurisprudence on Deference to the EEOC Is Consistent with Adopting the Stringent Standard of Review ........................................................................................ 478

1. The Court's Jurisprudence on Deference to Administrative Agencies ....................................................... 479
2. The Court's Jurisprudence on Deference to the EEOC.......481

V. Resistance to Adopting the Stringent Standard of Review...............................................................................................484

A. Legislative Oversight .................................................................. 484
B. Employers Retain the Right to Argue Their Cases on the Merits .........................................................................................486

Conclusion..................................................................................................487

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Introduction

Robert Lewis filed a charge of discrimination against his employer, the Asplundh Tree Expert Company, with the Equal Employment Opportunity commission, alleging that he suffered racial discrimination when Pete Evans crafted a noose from a piece of rope and placed it around Lewis's neck.² After investigating the charge for thirty-two months, the EEOC determined that there was "reasonable cause to believe the charge [was] true."³ It then sent Asplundh a proposed conciliation agreement, requiring a response within twelve business days⁴ —a very short period of time relative to the lengthy period of investigation.

Notably, the proposed conciliation agreement demanded three remedies that were not merely impracticable but impossible for Asplundh to perform.⁵ First, the EEOC demanded that Asplundh reinstate Lewis as a laborer even though the project on which he had worked ended three years earlier and the office for which he worked had closed.⁶ Second, the EEOC demanded that Asplundh provide Lewis with front pay even though, again, the project on which he had worked ended three years earlier and the office for which he worked had closed.⁷ Third, the EEOC demanded that Asplundh conduct nationwide antidiscrimination training for all its management and hourly employees within ninety days even though the alleged discrimination occurred only in the city of Gainesville, Florida.⁸

Moreover, the agency refused to reopen negotiations even though Asplundh made clear that it had retained counsel and wished to settle the case.⁹ Perhaps most objectionable of all, however, was the fact that Asplundh did not even

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employ Evans.¹⁰ The EEOC provided no theory explaining how Asplundh could possibly be liable.¹¹

These facts from EEOC v. Asplundh Tree Expert Co. prompt a crucial question: given that after the EEOC receives a charge of discrimination, Title VII of the Civil Rights Act of 1964 requires the agency to attempt to conciliate the charge with the private employer accused of discrimination before initiating suit against it,¹² what is the proper standard for reviewing whether the agency has satisfied its statutory duty to conciliate?

The answer to this question is more relevant than ever. The EEOC recently released its Strategic Plan for Fiscal Years 2012-2016, which presents the agency's strategy for enforcing Title VII over the next few years.¹³ The EEOC intends to focus its enforcement responsibilities on employers who allegedly engage in systemic discrimination, defined as alleged discrimination with "a broad impact on an industry, profession, company, or geographic area."¹⁴ By 2016, the agency aims to maintain a certain number of systemic discrimination cases on its litigation docket, increasing the number of such cases each year until that number is met.¹⁵ Importantly, as the agency increases the number of systemic discrimination cases it chooses to litigate, the potential for the agency to abuse its statutory duty to conciliate increases. That is, the agency has greater incentive to engage in unreasonable conciliatory efforts similar to those in Asplundh, effectively rendering its statutory duty to conciliate an empty formality. Whether the plan warrants fear of such abuse depends, at least in part, on what standard governs for reviewing whether the EEOC has satisfied its statutory duty to conciliate.

In addressing the proper standard for reviewing whether the EEOC has satisfied its statutory duty to conciliate, this Comment has five parts. Part I provides background, contextualizing the EEOC's statutory duty to conciliate within the framework imposed by Title VII of the Civil Rights Act of 1964,

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which created the EEOC and its concomitant duty to conciliate.¹⁶ Part II discusses the current split in the federal circuit courts of appeals on the proper standard for reviewing whether the agency has satisfied its duty to conciliate—two circuits, the Sixth and the Tenth, argue for a deferential standard of review¹⁷ while three others, the Second, Fifth, and Eleventh, argue for a stringent standard.¹⁸ Part III critiques the deferential standard of review, arguing that it cannot adequately protect private employers from the agency's potential abuse of its statutory duty to conciliate.¹⁹ Part IV argues that the stringent standard of review is the proper standard not only because it lacks the shortcomings of the deferential standard, but also because it is consistent with the text, purpose, legislative history, and jurisprudence of Title VII. Finally, Part V addresses resistance to adopting the stringent standard of review.

I. Background

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin.²⁰ Toward that end, Title VII created the EEOC,²¹ the federal agency with congressionally granted authority to not only receive, investigate, and conciliate allegations of employment discrimination,²² but to enforce Title VII against private employers who engage in discriminatory practices, whether systemic or individualized, by initiating suit against them.²³

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The EEOC's administrative duties—the receipt, investigation, and conciliation of allegations of employment discrimination—begin once an aggrieved person, a party on behalf of an aggrieved person, or an EEOC commissioner files a charge of employment discrimination with the agency.²⁴ Upon receipt of a charge, the EEOC must serve the employer with notice of it.²⁵ This notice includes "the date, place and circumstances of the alleged" employment discrimination.²⁶ Then, the EEOC must investigate the charge.²⁷ If the agency finds no reasonable cause to believe that the charge is true, it will dismiss it.²⁸ If, on the other hand, it does find reasonable cause to believe the charge is true, it must attempt to eliminate the unlawful discriminatory practice through conciliation,²⁹ a term not statutorily defined.³⁰ The EEOC generally begins the process of conciliation by inviting the employer to participate in conciliation.³¹ In its invitation, the EEOC generally requests that the employer contact the agency within a specified period of time to indicate whether it would like to...