Dive Brief:

• The U.S. Equal Employment Opportunity Commission (EEOC) must pay $3.3 million for failing to properly negotiate with an employer, the 8th U.S. Circuit Court of Appeals has ruled (EEOC v. CRST Van Expedited, No. 18-1446 (8th Cir. Dec. 10, 2019)).
• The commission failed to satisfy its Title VII obligations — rules that require it to engage in good-faith conciliation with an employer accused of discrimination before filing a lawsuit — nearly nine years ago, a court previously determined. The agency had sued on behalf of a class of women, arguing that CRST engaged in a "pattern or practice" of discrimination, but it allegedly declined to individually investigate each claim.
• The commission challenged a lower court's award of attorney's fees, expenses and costs but after nearly a decade of litigation that involved the U.S. Supreme Court, the 8th Circuit upheld the ruling. "The district court's finding that the EEOC's failure to conciliate and investigate the claims was an unreasonable litigation tactic that resulted in frivolous, unreasonable, or groundless claims is consistent with this court's prior observation that the EEOC 'wholly failed to satisfy its statutory presuit obligations,'" the court said.

Dive Insight:

EEOC is responsible for enforcing federal nondiscrimination laws that apply to employment. Employees generally must file a complaint with the commission before suing, giving the agency the opportunity to sue on their behalf. If it chooses to pursue a claim, it must first attempt to engage the accused employer in conciliation.

Because the parties involved are prohibited from discussing the details of conciliation in subsequent court proceedings, employers have had difficultly pushing back when they feel EEOC didn't meet its statutory obligations. The U.S. Supreme Court weighed in on the question in 2015 and held that the agency's conciliation efforts are reviewable by courts, but that the scope of that review must be narrow.

Such challenges remain an uphill battle for employers, as the extended litigation in CRST Van Expedited illustrates. Employers hoping to stay off EEOC's radar may want to familiarize themselves with the agency's enforcement priorities. In recent years, EEOC added several systemic problems — those that could involve a class of plaintiffs, as CRST did — to its focus, including gender-based pay disparities and inflexible leave policies.