A very important but little publicized change was made in the EEOC investigation practices around the first of August this year. The EEOC’s associate legal counsel, Peggy Mastroianni, announced that the EEOC will be making more “cause” findings in its investigations, and changing the standard of what it determines to be “cause” to believe that discrimination had occurred. Mastroianni stated that a “cause” finding used to mean that a charge was worthy of litigation by the EEOC. However, now the finding means that it is likely that discrimination occurred, but the EEOC will not necessarily bring suit.

This change is very important for management. It means that now it is much more likely that the EEOC will find “cause” to believe that discrimination had occurred, and attempt to negotiate a conciliation agreement. In such negotiations, it now appears that the EEOC will be willing to take less than a “full relief” settlement. That is, it appears that the EEOC will be willing to accept a reasonable compromise settlement, if mutually agreeable between the employer and the charging party. Even if the EEOC finds discrimination and is unable to negotiate a conciliation agreement, the Commission itself is less likely to sue, and will probably only sue in a minority of the cases. However, it may be easier for the charging party to get a plaintiff’s lawyer to bring suit, inasmuch as the charging party will have the benefit of a “cause” determination by the EEOC.

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