For The Defense ■ January 2 015 ■ 57
EMPLOYMENT AND LABOR LAW
■ Eric E. Kinder of Spilman Thomas and Battle in Charleston, West Virginia, is a member in the firm’s Labor
and Employment Group and a co-chair of the firm’s Appellate Practice Group. His primary areas of practice
are labor and employment law with an emphasis on wage and hour, employee benefits, ERISA litigation and
USERR A. Gordon L. Mowen II is an associate of Spilman Thomas and Battle, where his practice emphasizes
labor and employment law, workers’ compensation, and federal black lung claims.
Waiting for the
Dust to Settle Mach Mining
and the Future of
the EEOC’s Duty
to Conciliate in
Good-Faith Prior
to Civil Litigation
investigate and pursue. A problem arises,
however, when the EEOC’s zea lousness
translates into unreasonable conciliat ion
demands that deadlock the potential res-
olution of these claims prior to the ling
of a lawsuit. Specically, this aggressive-
ness conflicts w ith the EEOC’s express
statutory duty to attempt to secure, in
good faith, a conciliation agreement with
the employer as a precondition to ling
suit. See 42 U.S.C. §2000(e)-5(f)(1). Many
employers have challenged the EEOC’s l-
ing of a lawsuit on the basis that it failed to
attempt a resolution in good-faith in viola-
tion of this statutory duty.
Defense attorneys know that con-
ciliation is the process that is to occur
between the employer and the EEOC aer
an employee les an EEOC complaint and
probable cause is found, but before the
EEOC les suit. e process exists because
“Congress established an i ntegrated, mu l-
tistep en forcement procedure c ulminat-
ing in the EEOC’s authority to bring a civil
action in federal court.” Occidental Life
Ins. Co. v. EEOC, 432 U.S. 355, 359 (1977).
By Eric E. Kinder
and Gordon L. Mowen II
It is critical that
employers understand
that the EEOC enjoys
a very wide latitude of
authority in handling a
discrimination charge—
particularly during
the post-investigation
but pre-suit period.
Last year, individuals led over 100,000 charges of Title
VII violations with the Equal Employment Opportunity
Commission (“EEOC” or “Commission”), thousands of
which the EEOC has—and continues—to aggressively
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