In 1863 President Lincoln spoke of “a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.” His message was clear: discrimination, of any kind, must not be tolerated in a “government of the people, by the people, for the people.” Although more than a century had passed since President Lincoln delivered his Gettysburg Address, Congress took a major step toward fulfilling Lincoln’s vision when it passed the Civil Rights Act of 1964, the dynamic culmination of civil rights activism, a series of seminal Supreme Court cases, and the relentless effort of fearless leaders who helped shine the national spotlight on the lingering badges of slavery that remained entrenched in society.
Congress, seeking to dismantle the informal caste system that had emerged as a result, included Title VII in the Act in an effort “to eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin.” H. R. Rep. No. 914, 88th Cong., 1st Sess., 26 (1963). See 110 Cong. Rec. 13079-13080 (1964) (remarks of Sen. Clark). To achieve this mission, Congress created the EEOC and directed its members to “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion” before initiating a civil action. 42 U.S.C. § 2000e-5(b) (emphasis added).
On Monday, the Eastern District of California issued an opinion that identifies a “split among the [circuit courts] regarding the proper standard for reviewing whether the EEOC has attempted to conciliate in good faith.” EEOC v. Alia Corp., Case No. 1:11-cv-01549 LJO BAM (E.D. Cal. Feb. 6, 2012) (alteration in original).
The Second, Fifth, and Eleventh Circuits require courts to evaluate "the reasonableness and responsiveness of the EEOC's conduct under all the circumstances." EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (quoting [EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981)]). Under this standard, the EEOC must at least: (1) outline to the employer the reasonable cause for its belief that a violation of the law has occurred; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. Id. (citing Klingler, 636 F.2d at 107). See EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2d Cir. 1996). The Sixth and Tenth Circuits, on the other hand, appear to have adopted a standard that is much more deferential to the EEOC. Under this standard, a court "should only determine whether the EEOC made an attempt at conciliation. The form and the substance of those conciliations is within the discretion of the EEOC . . . and is beyond judicial review." [EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1102 (1984)] (emphasis added). See also [EEOC v. Zia, Co., 582 F.2d 527, 533 (1978)] ("[W]e agree that a court should not examine the details of the offers and counteroffers between the parties, nor impose its [own] notions of what the agreement should provide.").
Id. After examining the positions taken by other circuits, the court turned its attention to its own circuit:
The Ninth Circuit has not weighed-in on the issue. However, district courts in this circuit have generally tilted toward the approach taken by the Sixth and Tenth Circuits, affording the EEOC wide deference in discharging its duty to conciliate. See EEOC v. Cal. Psychiatric Transitions, Inc., 644 F. Supp. 2d 1249, 1273 (E.D. Cal. 2009) ("Cal. Psych. I") (applying the deferential standard expressed by the Sixth Circuit in Keco); U.S. EEOC v. Hometown Buffet, Inc., 481 F. Supp. 2d 1110, 1113-14 (S.D. Cal. 2007) (same); EEOC v. Grimmway Enters., Inc., Case No. CV F 06-0561 LJO DLB, 2007 U.S. Dist. LEXIS 45268, at *16-18 (E.D. Cal. June 12, 2007) (same); EEOC v. Gold River Operating Corp., 2:04-cv-01349-LRL, 2007 U.S. Dist. LEXIS 24597, at *14-17 (D. Nev. Mar. 30, 2007) (same); U.S. EEOC v. Lawry's Restaurants, Inc., Case No. CV 06-1963 DDP PLAx, 2006 U.S. Dist. LEXIS 55859, at *3 (C.D. Cal. July 14, 2006) (same).
Id. Accordingly, the court ulitmately endorsed the more deferential standard, explaining,
This Court finds no reason to depart from the deferential approach taken by the district courts in the Ninth Circuit. Title VII, as a whole, affords the EEOC substantial deference in discharging its duties. See Hometown Buffet, 481 F. Supp. 2d at 1113-14. In fact, an effort by the U.S. Senate in 1972 to require judicial approval of EEOC settlement agreements was "soundly rejected." EEOC v. Sears, Roebuck & Co., 504 F. Supp. 241, 262 (N.D. Ill. 1980) (citing 118 Cong. Rec. 3807 (Feb. 14, 1972)). Therefore, in evaluating the sufficiency of the EEOC's conciliation efforts in this case, the Court will defer to the judgment of the EEOC and confine its inquiry to whether the EEOC "made an attempt at conciliation." Keco, 748 F.2d at 1102 (emphasis added). So long as Alia was given "an opportunity to respond to all [the] charges and [to] negotiate settlement," the EEOC fulfilled its statutory duty to conciliate in good faith. EEOC v. Prudential Federal Sav. & Loan Ass'n., 763 F.2d 1166, 1169 (10th Cir. 1985) (citation omitted).
From a practical standpoint, where conciliation is treated as a jurisdictional prerequisite to filing a lawsuit under Title VII or the ADA, the EEOC’s failure to conciliate in good faith warrants dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1). On the other hand, where conciliation is merely treated as an element of a Title VII or ADA claim, the defendant must challenge the EEOC’s failure to conciliate in good faith by filing a Rule 12(b)(6) motion to dismiss for failure to state a claim.