Employer’s Statements During Title VII Conciliation Process Cannot Create Oral Contract

A group of employees filed charges with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that their employer violated Title VII of the Civil Rights Act of 1964, as amended (Title VII), by discriminating against them because of their race. The EEOC initiated an informal “conciliation process” to attempt to resolve the dispute between the employer and the employees. After two weeks of negotiations, the employer withdrew from the process. The EEOC sued, alleging that the employer had verbally agreed to settlement terms before it withdrew. The agency argued that “[w]hat was ‘said or done’ during conciliation must be revealed to determine the existence of an oral agreement.” The U.S. Court of Appeals for the Fifth Circuit rejected the EEOC’s argument and held that disclosure of what the employer said during conciliation would be contrary to the plain language of Title VII’s confidentiality provision, which provides that “[n]othing said or done during and as a part of [the conciliation process] may be made public by the [EEOC].” Moreover, revealing the employer’s statements would conflict with the purpose of the confidentiality provision, which is to encourage employers to participate in voluntary settlements. Employers should be aware that any statements made during a Title VII “conciliation process” will remain confidential and cannot be disclosed in a subsequent action.

A group of employees filed charges with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that their employer violated Title VII of the Civil Rights Act of 1964, as amended (Title VII), by discriminating against them because of their race. The EEOC initiated an informal “conciliation process” to attempt to resolve the dispute between the employer and the employees. After two weeks of negotiations, the employer withdrew from the process. The EEOC sued, alleging that the employer had verbally agreed to settlement terms before it withdrew. The agency argued that “[w]hat was ‘said or done’ during conciliation must be revealed to determine the existence of an oral agreement.” The U.S. Court of Appeals for the Fifth Circuit rejected the EEOC’s argument and held that disclosure of what the employer said during conciliation would be contrary to the plain language of Title VII’s confidentiality provision, which provides that “[n]othing said or done during and as a part of [the conciliation process] may be made public by the [EEOC].” Moreover, revealing the employer’s statements would conflict with the purpose of the confidentiality provision, which is to encourage employers to participate in voluntary settlements. Employers should be aware that any statements made during a Title VII “conciliation process” will remain confidential and cannot be disclosed in a subsequent action.