Employers often just go through the motions during the proceedings before the Equal Employment Opportunity Commission (EEOC), but the steps are an important part of the process leading up to a lawsuit. In order to pursue rights under most federal antidiscrimination laws, in Oklahoma a person must file his or her charge of discrimination with the EEOC within 300 days of the alleged discrimination or retaliation. Once the person receives his or her “Right to Sue” Notice from the EEOC, he or she has 90 days in which to file a lawsuit based upon the charge filed.

However, there is one more step to the process – conciliation efforts. The law says the EEOC must attempt to conciliate the charge of discrimination.

It is not common an employer will raise this defense in court, believing it better to simply move forward with the litigation, but recently Alliance Health Midwest did just that in a case brought against it by Ms. Karmid.

Karmid filed a charge of discrimination with the EEOC against Alliance Health Midwest on March 10, 2017, and received her right to sue notice on the very same day. Within 90 days, Karmid filed a lawsuit. Alliance Health Midwest argued to the trial court that, because the EEOC issued the right to sue notice on the same day as the day the EEOC received the charge, there was no way it could have attempted efforts at conciliation; thus, the case should be dismissed.

The trial court cited the United States Supreme Court’s decision in Mach Mining, which held:

Title VII… imposes a duty on the EEOC to attempt conciliation of a discrimination charge prior to filing a lawsuit. That obligation is a key component of the statutory scheme. In pursuing the goal of bringing employment discrimination to an end, Congress chose cooperation and voluntary compliance as a preferred means. …

And the duty it imposes serves as a necessary precondition to filing a lawsuit. Only if the Commission is “unable to secure” an acceptable conciliation agreement – that is, only if its attempt to conciliate has failed – may a claim against the employer go forward. § 2000e-5(f)(1). …

So 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.

Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1651-52 (2015) (internal quotations and citations omitted).

The trial court found the EEOC had not satisfied its duty. While the employer asked the trial court to dismiss the case on that basis, it did not do so. Instead, the trial court stayed the lawsuit so Karmid could resubmit her charge of discrimination to the EEOC, allowing the agency the opportunity to fulfill its statutory obligation. Once completed, and assuming there was no successful conciliation before the EEOC, the lawsuit would proceed.

Although the EEOC generally follows its processes and attempts conciliation, it is not unheard of for an employer to be in this same situation – in court having not been offered conciliation through the EEOC. While it is tempting to file a motion to dismiss on that basis, courts are reluctant to “punish” the individual for the failings of the agency. The likely outcome will be as it was here – allowing time for the agency to rectify the problem. If this is a desired outcome for an employer, pursue the motion. If an employer believes this will be a “get out of court free” card, disappointment may be in your future. Your efforts are better spent solidifying your defense to the allegations.

By Kristen L. Brightmire, kbrightmire@dsda.com