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How to negotiate at conciliation stage? Respondent just sent a counter offer, eeoc sent a counter offer as well. What to expect

Davenport, FL |

National origin discrimination and retaliation (hiring), respondent denied employment 16 times with mass hiring, opening a new property, EEOC found they did not hired Hispanics in management positions. Just white Caucasian.

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Attorney answers 2


Asking for advice as to how to conduct a negotiation is really the wrong question. The right question is whether you should have an attorney. And the answer to the right question is yes.

Your posting suggests that you are somewhat in over your head. Apparently you made a demand and the respondent counteroffered. Contrary to your reportage, EEOC did not counteroffer. The most EEOC may have done is to convey an offer from you, the charging party, or from the respondent. If mediation were taking place, then EEOC might suggest a sum.

Good luck to you.

Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.

Marilynn Mika Spencer

Marilynn Mika Spencer


Actually, it's the other way around. An EEOC mediation takes place before the agency has investigated the case. The case may have no merit whatsoever or it may have merit. The EEOC has no idea and merely acts as a facilitator to bring the parties to settlement, and thereby clear one more case out of its backlog. The EEOC mediator may help the parties come up with an offer or counter, but the EEOC should not make decisions on the offers that go back and forth. In contrast, at a conciliation, the EEOC has investigated the case and decided the case has merit. These are cases the EEOC MIGHT litigate, and it has an interest in the outcome. Sometimes, the EEOC will make settlement suggestions in a conciliation. EEO cases that go to mediation are almost always B or C cases. The EEOC instituted Priority Case Handling Procedures (PCHP) by which cases are categorized as A , B or C cases. A cases are the strongest. They are cases where discrimination appears likely. Other A cases are those that involve an issue the EEOC wants to deal with, or involve a lot of people or multiple charges against the same employer, or policy issues. A1 cases are A cases that the EEOC identifies as appropriate for litigation. A2 cases are A cases that are not appropriate for litigation, most often because the employer is a public agency and the EEOC is prohibited from litigating against a public agency. C are cases for which the EEOC does not have jurisdiction (power) over. C cases are those where the time limit to file is passed, the charging party provided self-defeating information, there is no employer-employee relationship, or it isn't an issue the EEOC deals with. B cases are everything else and typically require further investigation. B– (B minus) cases are B cases that look doubtful, but just might have something to them.


I am a California attorney and not eligible to give legal advice in your state. My comments are for information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. If I refer to your state's laws, that only means I did a quick Internet search and found something that appeared relevant. You should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.

I agree with Mr. Haber that you need your own attorney. However, I want to clarify something in his response. An EEOC conciliation is a mediation, for all practical purposes. The significant difference between an EEOC mediation and an EEOC conciliation is that the EEOC has not analyzed the merits of a charge before it goes to mediation. In a conciliation, the EEOC has investigated and analyzed the facts, and has made a decision that unlawful discrimination took place. The conciliation process is just like a mediation; it just has a very different and very different starting point.

The issue of whether a charging party needs his or her own attorney during an EEOC mediation comes up fairly often here on Avvo. For this reason, I've written a guide on this subject and I encourage you to review it: I urge you to read it.

Employment law is complicated and fact specific. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is, and you can search for attorneys by location and practice area.

Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.

I hope you can resolve your situation and wish you the best.

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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