HR Minute

U.S. Supreme Court to EEOC: Here’s a Chair, Sit Down!

Last month, the U.S. Supreme Court in the Mach Mining, LLC v. EEOC case unanimously ruled that the U.S. Equal Employment Opportunity Commission (EEOC) conciliation efforts are indeed subject to review by courts. Employers have long protested against the EEOC’s handling of the mandated conciliation process, arguing that the EEOC often glosses over their duty to conciliate. The nation’s highest court held that Congress imposed a mandatory duty on the EEOC to attempt conciliation and confirmed that duty as a precondition to filing a lawsuit following a cause finding. The Court found that the EEOC was not permitted to police itself and that therefore the EEOC’s conciliation obligation is subject to judicial review.

What is Conciliation?

If the EEOC issues a cause finding after an investigation of an EEOC charge of discrimination or retaliation, the EEOC is charged with overseeing a conciliation process. The EEOC is required by Title VII to attempt to resolve findings of discrimination or retaliation on charges through conciliation. The EEOC must enter conciliation before filing a lawsuit against an employer. Conciliation is a meeting between the employee and employer to attempt to resolve and remedy the alleged discrimination or retaliation. Neither the employee nor the employer can be forced to accept particular terms.

Background on Mach Mining Case

A former female employee filed a charge of discrimination with the EEOC claiming that her employer, Mach Mining, LLC, had refused to hire her for a coal miner position because of her gender. The EEOC investigated the charge and found reasonable cause to believe that her employer had discriminated against her along with a class of women who had similarly applied for mining jobs. The EEOC sent a letter informing the employer of the reasonable cause determination and inviting the employer and the complainant to participate in “informal methods” of dispute resolution. The letter also said that an EEOC representative would contact them soon to begin the conciliation process. Nearly a year later, the EEOC sent the employer a second letter stating that the conciliation efforts had been unsuccessful. The EEOC thereafter filed a lawsuit against the employer in federal district court alleging sex discrimination in hiring.

The employer, in its answer to the complaint, argued that the EEOC had failed to conciliate in good faith prior to filing the lawsuit and that the case should therefore be dismissed. The EEOC took the position that the court could only “inspect” its two letters to the employer to confirm the EEOC had attempted to conciliate. The district court disagreed with the EEOC, and authorized an immediate appeal to the Seventh Circuit Court of Appeals. The Appellate Court sided with the EEOC, holding that the directive to conciliate is “not subject to judicial review.” The employer appealed to the U.S. Supreme Court.

Supreme Court’s Decision

The Supreme Court reversed the Seventh Circuit Court of Appeals and found that Congress “did not deprive the courts of judicially manageable criteria by which to review the conciliation process.” The Court held that Title VII’s conciliation provision required that the EEOC must: 1) inform the employer about the specific discrimination allegation, 2) describe what the employer has done and which employees (or class of employees) have suffered, and 3) engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. The Court noted that the EEOC can show its compliance through a sworn affidavit. The employer then has the ability to rebut the EEOC’s affidavit by providing specific evidence that the EEOC did not meet those requirements. A court would then conduct a review to resolve the dispute. The Supreme Court found that if a lower court finds for the employer, the EEOC would be ordered “to undertake the mandated efforts to obtain voluntary compliance.”

Bottom Line

While this decision is a defeat for the EEOC, it will not end the debate over conciliation. The decision appears to set a low burden for the EEOC in terms of meeting its obligation in conciliation. What obligations does the EEOC have in engaging a discussion to resolve charges? For example, the EEOC often takes unreasonable positions in conciliation meetings, like requesting that statutory maximums in damages and refusing to negotiate from that number. The Supreme Court’s narrow decision does not address whether the EEOC can be held accountable for taking such aggressive and bullying conciliation tactics. The lower courts will be charged with shaping the parameters listed in the Supreme Court’s decision. Another take away from this case is that the Court did not find that the EEOC’s failure to conciliate will result in a dismissal of the lawsuit. The Court instead suggested that the remedy was for the EEOC to go back to the drawing board and undertake conciliation again. From a practical standpoint, this suggests that the EEOC’s failure to conciliate would not cause a case to be dismissed, but only delayed until the EEOC properly conducts conciliation.

The full case is Mach Mining, LLC v. EEOC, No. 13-1019, 2015 U.S. LEXIS 2984 (2015).

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