GEO Group Fails With Challenge to EEOC Conciliation

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By Patrick Dorrian

March 14 — The Equal Employment Opportunity Commission and a related Arizona agency followed proper procedure in suing a prison operator for unlawful sex discrimination on behalf of a class of female correctional officers, the Ninth Circuit held March 14.

Reversing a lower court, the U.S. Court of Appeals for the Ninth Circuit found that the civil rights enforcement agencies adequately conciliated with the GEO Group Inc. before suing the company, as required by federal and state laws. The agencies described how a class of female prison guards were subjected to discrimination, harassment and retaliation, and they engaged with the company in a formal mediation session in an attempt to resolve their claims. That is all that's required under recent U.S. Supreme Court precedent, the appeals court said.

It also ruled that the EEOC and the Arizona Civil Rights Division both satisfy their pre-suit conciliation requirements in class action litigation when they try to conciliate “on behalf of an identified class of individuals,” as they did here. The agencies don't need to attempt to conciliate the claim of each class member, the court said.

All potential class members who allege they were subjected to bias on or after 300 days before the original charging party filed with the EEOC may participate in the lawsuit, the court added. It further held that any individual employee isn't required to have filed a new charge if her allegations are “already encompassed within” the ACRD's investigative finding, or if it's “like or reasonably related to” the allegations in the original charge.

The decision reaffirms the U.S. Supreme Court's holding in Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (2016), that although EEOC conciliation efforts are subject to court review, such review is limited .

In addition, the Ninth Circuit joins three other federal appeals courts in holding that the EEOC isn't required to conciliate each prospective class member's individual claim on an individual basis prior to filing a class action lawsuit.

EEOC Pleased With Ruling

In a statement to Bloomberg BNA March 14, EEOC General Counsel P. David Lopez said the commission is “very pleased with the Ninth Circuit's decision.”

He said the ruling “allows the EEOC to proceed with its claims that twenty female corrections officers experienced sexual harassment and retaliation while they worked at two prisons operated by the Geo Group. This ruling means that the victims, who were brave enough to step forward and participate in the EEOC's lawsuit, will now have their day in court.”

GEO Group declined to comment March 14 when contacted by Bloomberg BNA.

The original charge in the case was filed by Alice Hancock, a correctional officer at the Arizona State Prison, Florence West Facility. She alleged that Sgt. Robert Kroen grabbed her crotch and pinched her vagina and that GEO Group failed to remedy the harassment after she filed an incident report.

Hancock further alleged that in retaliation, three of her co-workers complained that she made an offensive comment, causing her to be suspended without pay for 15 days. She ultimately was fired three months after filing her discrimination charge.

The ACRD investigated Hancock’s charge and found evidence substantiating her allegations. It also found evidence that male supervisors had “created an offensive and hostile work environment based on gender that adversely affected Hancock and a class of female employees working at the facility,” and that GEO Group didn't take reasonable measures to prevent and correct the harassment.

The state agency sued in Arizona state court, and the case was later removed to federal court. The U.S. District Court for the District of Arizona granted summary judgment in favor of GEO Group, and the EEOC and the ACRD appealed.

Four Issues on Appeal

Judge Consuelo Maria Callahan said the agencies raised four issues on appeal, including the proper scope of agency conciliation under Title VII of the 1964 Civil Rights Act and the Arizona Civil Rights Act.

Also at issue, she said, were when Title VII’s 300-day limitations period starts to run in an EEOC class action; whether an aggrieved employee in an EEOC class action is required to file a new charge of discrimination for acts that occur after the agency's reasonable cause determination has been issued; and whether one of the aggrieved employees on whose behalf the agencies sued presented triable issues of hostile work environment harassment.

Finding in favor of the agencies on all four questions, the Ninth Circuit revived their claims. On the issue of the proper scope of conciliation, it cited Mach Mining in finding the agencies' pre-suit efforts were adequate.

The EEOC and the ACRD in the reasonable cause determination sent to the company made reference to a “class” of female employees who were subjected to discrimination, harassment and retaliation at the Florence West and another GEO facility. They also invited GEO Group to conciliate, and during a formal mediation session, they proposed a settlement that included damages, injunctive relief and a class fund for unnamed class members, Callahan found.

The appeals court also found support in Mach Mining for its holding that the EEOC and state agencies satisfy their pre-suit conciliation obligations in class actions when they try to conciliate on behalf of an identified class of individuals prior to suing, rather than attempt to conciliate each class member's claim individually. In Mach Mining, it said, the Supreme Court ruled that the EEOC is only required to identify what the employer did that was illegal and which employees or what class of employees were discriminated against.

That conclusion is consistent with the EEOC's broad enforcement powers as well as prior holdings by the Third, Fourth and Sixth circuits, Callahan added.

Charge Date Sets Class Period

The appeals court said the lower court also erred in finding that the date of the ACRD's reasonable cause determination, rather than the date of Hancock's charge, was the proper date for measuring the timeliness of each individual class member's claims.

As in class actions brought by private plaintiffs, the starting date of a class action is the date the original charging party filed her charge, the Ninth Circuit ruled.

“Nothing in the text of the statute supports the district court’s imputation of the employee’s time limit into the EEOC’s duty to notify the employer of the results of its investigation,” Callahan wrote.

Judges Stephen Reinhardt and A. Wallace Tashima joined the opinion.

EEOC attorneys in Washington represented the commission. The state attorney general's office represented Arizona. Littler Mendelson P.C. represented GEO Group.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com