The EEOC has been hit with another sanction of attorney’s fees.  A court assessed $2.6 million in attorney’s fees against the EEOC due to a lawsuit they filed which they lost.  See Workplace Prof blog post.  The EEOC had sought class action status in EEOC v. Cintas and lost.  Because the EEOC did not attempt conciliation prior to suit, the federal court dismissed the action.  See the court decision.  The court found that conciliation was required as part of the requirement to exhaust administrative remedies.  

Title VII of the Civil Rights Act of 1964 has requires that when the EEOC finds "reasonable cause" to believe that discrimination has occurred, then the EEOC must attempt conciliation or settlement.  This requirement was an early attempt at lawsuit reform.  It requires that individuals bringing suit first attempt all non-lawsuit remedies first.  

In EEOC v. Cintas, the EEOC had been denied class action status.  It then sought a "pattern and practice" type allegation on behalf of thirteen individual women and was again re-buffed.  Responding to the employer’s claim that it had not attempted conciliation, the EEOC argued that it did attempt conciliation against Cintas previously as part of its class action suit – which later failed. But, that conciliation apparently did not include these thirteen individual women.  So, yes, the EEOC attempted conciliation on behalf of a class of women, but apparently did not attempt conciliation on behalf of these thirteen ultimate plaintiffs.  This is an important distinction.  But, does this distinction make a difference?  Would Cintas have been any more receptive to conciliation if the plaintiffs were thirteen individual women, instead of a class of women?

As Workplace Prof points out, this decision and others like it are tying the EEOC’s hands in regard to pursuing class actions or multiple plaintiff lawsuits.  The EEOC lacks the resources to represent individual plaintiffs.  They simply do not have enough lawyers.  So, they have been trying to focus on larger lawsuits, such as class action lawsuits and "pattern and practice" lawsuits.  This federal court decision will make it more difficult for the EEOC to focus on systemic cases.  We taxpayers will get less bang for our buck from this important federal agency.  And, Cintas skates after having been found reasonably likely to have discriminated against some women.