Even the government thinks the EEOC sues employers too much

The Equal Employment Opportunity Commission has been criticized by the US House of Representatives for accelerating toward litigation before thoroughly engaging in conciliation. This month, the House Appropriation Committee released its funding proposal, which demanded that the EEOC report back on how it ensures that conciliation efforts are pursued in good faith.

“The Committee is concerned with the EEOC’s pursuit of litigation absent good faith conciliation efforts,” the commerce, justice, science and related agencies appropriations bill report read.

It comes in the wake of shots fired by former EEOC lawyer Merrily Archer, who accused the EEOC of bullying employers into unnecessarily large settlements earlier this year.

Nearly 800 businesses responded to Archer’s call for data on what the EEOC was actually telling organizations in the mediation process: and what she found was that employers were being pressured into settlements at mediation because the EEOC would overstate risks of litigation. According to her survey, more than 80% of businesses who had gone through mediation said the mediator referenced the cost of defense at trial when encouraging the organization to settle.

More than 50% of the time, businesses had also been told by the EEOC that “juries dislike employers”, or that a jury would not like the evidence an employer had to offer. More than 60% of mediations resulted in the employer being threatened with a potential systemic investigation, litigation or cause determination, despite the fact that only 3.6% of cases end in cause determinations and less than 0.1% of cases end in litigation.

The overstatements are of huge importance because more than four in 10 employers have experienced at least one mediation in the past two years.

Because employers aren’t allowed to discuss what goes on in mediation, they’re left in the dark about the EEOC’s practices, Archer said.

“There hasn’t been any meaningful introspection (on behalf of the EEOC),” said Archer. “It’s a good time to be asking ‘is it working?’”

The EEOC would not respond to requests for comment.