U.S. Supreme Court Requires EEOC to Attempt Conciliation Before Suing
In Mach Mining LLC v. Equal Employment Opportunity Commission, the United States Supreme Court was presented with the issue of whether the EEOC must attempt to conciliate an employer’s alleged violation of Title VII of the Civil Rights Act of 1964 before initiating a lawsuit against the employer and, if so, to what extent a court may review those conciliation efforts. The Court concluded that the EEOC must attempt to engage in conciliation, but that the scope of a court’s review of the EEOC’s efforts is narrow. Post-Mach Mining, an employer that attempts to challenge a lawsuit brought by the EEOC on the grounds that the agency’s conciliation efforts were insufficient will be fighting an uphill battle.
Brooke Petgas filed a charge of sex discrimination with the EEOC after her job application with Mach Mining was rejected. Title VII provides that if the EEOC find reasonable cause that a claimant’s charge is true, before bringing a lawsuit the agency “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). (The Americans With Disabilities Act is subject to this same provision, and the Age Discrimination in Employment Act contains a similar provision.) After finding “reasonable cause” in Petgas’ case, the EEOC notified both Petgas and Mach Mining by letter that it would soon commence conciliation efforts. About a year later, the agency sent another letter to the parties advising that the required conciliation had occurred and that further conciliation efforts would be futile. According to the Supreme Court, the record did not disclose what actually occurred between the two letters.
After the EEOC sued Mach Mining in federal district court, Mach Mining asserted, as an affirmative defense, that the EEOC had failed to engage in sufficient conciliation efforts. The district court denied the EEOC’s motion to dismiss the affirmative defense, but certified the issue for immediate appeal. The United States Court of Appeals for the Seventh Circuit ruled that the EEOC’s motion should have been granted, ruling that the federal courts have no authority to review the EEOC’s assertion that it had engaged in the required conciliation.
The Supreme Court’s Decision
A unanimous Court, in an opinion authored Justice Kagan, first noted the “strong presumption” in favor of judicial review of administrative action. Noting that Title VII’s conciliation provision is expressed in mandatory terms, the Court concluded that the EEOC had failed to meet its “heavy burden” of demonstrating that Congress intended to prohibit all judicial review of the EEOC’s conciliation efforts. Rejecting the EEOC’s position, adopted by the Seventh Circuit, that Title VII did not provide a manageable standard by which the EEOC’s conciliation efforts could be reviewed, the Court held that the federal courts are empowered to review: (1) whether the EEOC ignored its obligation to conciliate altogether, (2) whether the agency gave the employer sufficient notice of the claim, i.e., “what practice of the employer has harmed which person or class,” and (3) whether the employer was given “an opportunity to discuss the matter in an effort to achieve voluntary compliance.” The Court reasoned that these requirements provide the basis for a manageable standard of review. Finally, the Court concluded that the two above-noted EEOC letters on their face did not establish the agency’s compliance with the conciliation requirement, and thus a further inquiry into what occurred between the two letters was necessary.
Although the Court reversed the Seventh Circuit’s ruling, the Court rejected Mach Mining’s position that courts are empowered to review what occurs during the conciliation process itself to determine whether the EEOC has negotiated in good faith. The Court reasoned that such a detailed inquiry would be inconsistent with both (1) the broad discretion Title VII affords the EEOC to decide how much conciliation it must undertake, in terms of both time and resources and (2) the confidentiality and nondisclosure provisions Congress mandated in Title VII for the conciliation process. Thus, the Court concluded: “A sworn affidavit from the EEOC stating that it has performed its [conciliation] obligations . . . but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. . . . If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.” . . . Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.”
Mach Mining makes clear that the EEOC cannot blatantly ignore its obligation to endeavor to conciliate discrimination charges in a rush to bring a lawsuit against the allegedly offending employer. However, the decision is disappointing to those who had hoped that the EEOC must do more than “go through the motions” before initiating litigation, which the decision effectively permits it to do. Employers who truly desire to settle discrimination charges at the administrative level, and thus avoid litigation, should be proactive and make it clear to the EEOC that the matter can be settled.
For questions concerning this blog or charges before the EEOC in general, please feel free to contact any attorney in the Gibbons Employment & Labor Law Department.