Confidentiality in Systemic Discrimination Settlements

So Esther, let's talk a little bit about settlements. Have you ever settled a systemic discrimination investigation with a government agency confidentially?

Yes, Erin. Yes, yes, and yes. And always. Under Title VII, the EEOC has an obligation to conciliate, which is to try to settle a charge before the agency can file suit. Title VII actually prohibits the EEOC under criminal penalties from publishing any information that goes on in conciliation, including a conciliated settlement agreement. That is, unless the employer waives confidentiality. Sometimes, the EEOC will include in their proposed conciliation agreements a waiver of confidentiality and use that as leverage to extract concessions. But the truth is, the EEOC cannot come to impasse over confidentiality because the employer has a statutory right to confidentiality under Title VII. Now, that's not the case under all laws. For example, I understand OFCCP is not constrained in publicizing their settlements. What's been your experience in getting confidentiality from OFCCP and the California Civil Rights Division?

It's actually the opposite when you talk about the OFCCP. In my experience, those settlements are public and they usually take the form of a conciliation agreement. But the OFCCP usually makes the conciliation agreement publicly available and issues a press release. So, in my experience, OFCCP settlements tend to be public. When it comes to the California CRD, my experience has been similar. Instead of a conciliation agreement, the California CRD often insists on a consent decree that gets filed in court, and then the court has oversight in overseeing the settlement agreement. In addition to dollars paid, this often involves injunctive relief coupled with recordkeeping obligations and reporting obligations. So it sounds like things are quite different in the context of the EEOC than in the context of OFCCP and the California CRD.

Well, yes and no, because once the EEOC files suit, just like your experience, the EEOC will insist on a consent decree. They will insist on it being court-approved and publicly filed, and they'll even insist that the court retain jurisdiction to monitor compliance. The list of non-monetary terms in the consent decree tends to be extensive – things that you probably have experienced as well, whether it's training, posting in every facility non-discrimination notices, sometimes hiring and promotion goals, and all of that, coupled with reporting and recordkeeping obligations.

The public nature of these settlements is really one of the main reasons why it is very important to get things right during the investigation. You want to try to steer the investigation towards a finding of no adverse findings, because if you settle and it becomes public, the publication of the settlement can be reputation-damaging to employers.

At the EEOC, that drives a lot of the resolutions and conciliation. It's not because the employer believes that the employer actually engaged in discrimination. It's because conciliation guarantees a confidential settlement.

That also is true when it comes to litigation, which I think we're going to talk about next.