January 24, 2013 Articles

Bad-Faith Conciliation and Dilatory Tactics in Agency Settlement Negotiations

Courts are no longer willing to afford absolute deference to the government's position.

By Cynthia Ozger-Pascu – January 24, 2013

Although many attorneys and litigants view the Equal Employment Opportunity Commission (EEOC) as invincible, a series of recent cases in the district and appellate courts throughout the United States have scrutinized the EEOC’s conciliation efforts and, in many cases, ruled those efforts deficient. These decisions, along with Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012), reveal an unwillingness to continue the decades-long practice of courts affording deference to the government’s position. Instead, as discussed herein, the deference afforded to the commission is withdrawn where it fails to play by its own rules, especially in the conciliation process.

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