2009 is off to a bad start for the Equal Employment Opportunity Commission. On Jan. 15, the 5th U.S. Circuit Court of Appeals did a throw down to the EEOC and its conciliation process.
So, let’s look at Equal Employment Opportunity Commission v. Agro Distribution LLC and talk about the commission’s conciliation process. As the opinion noted, the EEOC, before bringing the weight of the U.S. government down on an employer with a suit, is statutorily obligated to engage in good-faith conciliation, which is simply a $450-an-hour word for talking settlement. And good faith now includes for the 5th Circuit (but not all other circuits) a requirement that the EEOC make a settlement offer and then respond in, to quote the opinion’s aspirations, a “reasonable and flexible manner” to any employer response.
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