If the EEOC investigation finds grounds for non-compliance, the EEOC must first attempt to find a conciliation between the employee and the employer in order to remedy the discrimination and remedy this situation. If the conciliation is successful, neither the employee nor the EEOC can bring an action against the employer. However, if the conciliation does not succeed, the EEOC can either bring an action on behalf of the employee or disclose the matter to the individual to file an independent action. In addition, the law stipulates that conciliation talks are confidential: „nothing that has been said or done during and in the context of such informal efforts“ may be published by the EEOC or „used as evidence in a subsequent proceeding without the written consent of the parties concerned“. If the conciliation does not provide for a transaction between the parties, there is a legal action and the defendant/employer must now consider the consequences of the EEOC investigation, including the EEOC decision letter, as this may be admitted as evidence at the time of trial. The legal conciliation requirements demonstrate Congress` intention to get the EEOC to pay the fees informally and to bring employers into compliance with anti-discrimination legislation. A court stated: „The EEOC fulfills this mandate when it exposes to the employer (1) the reason for its presumption that the employer does not respect the respect . . . (2) provides an opportunity for voluntary compliance and (3) responds appropriately and flexibly to the reasonable attitude of the employer.“ Johnson and Higgins, 91 F.3d at 1534-35. The conciliation procedure should allow the employer and the EEOC to negotiate how the employer can change its policies and practices in order to comply with Title VII and to pay, if necessary, the amount of damage to the loading party. In 2007, the EEOC filed an application for discrimination against Home Town Buffet in the Ninth Circuit.
Home Town Buffet (HTB) filed an application for a summary decision stating that the EEOC did not comply with its legal obligation to reconcile prior to the filing of the complaint. Without binding power in the Ninth arrondissement, the District Court upheld the legislation that provides the EEOC should continue with the conciliation procedure until it is unable to guarantee the respondent an acceptable conciliation for the Commission. (EEOC vs. Home Town Buffet (2007) 481 F. Supp. 2d 1110, 1113) The court applied a suspensive standard to the EEOC obligation. (id. to 1114) HTB argued that the court should apply a standard of adequacy to the EEOC procedure. (Id.) Under the suspensive standard, the court verifies whether the employer has had an opportunity to ask the questions.
Conversely, the Tribunal considers that the EEOC`s obligation is different according to a standard of adequacy, based on legislative history and on the basis that the EEOC must at least clarify to the employer the basis of the accusations made by the EEOC against it. Without this, it is not possible to say that the EEOC has established a useful mediation. (Asplundh, supra. 340 F.3d 1256 to 1259) In comparison, the EEOC conciliation procedure often requires the employer to negotiate in a position of ignorance, as the EEOC is reluctant to inform the employer of the basis of evidence for determining the causes of the EEOC.