By David R. Vance*
In a decision issued on April 29, 2015, Mach Mining LLC v. Equal Employment Opportunity Commission, the Supreme Court of the United States held that the Equal Employment Opportunity Commission’s (“EEOC”) conciliation efforts are subject to judicial review, albeit within a narrow scope. Prior to this decision, the circuit courts were split on whether the statute requiring the EEOC to pursue conciliation allowed for judicial review of the EEOC’s efforts.
Title VII requires the EEOC to follow certain procedures when investigating a complaint made against an employer. If the EEOC finds reasonable cause after its investigation of an employer, it must then attempt “to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. 2000e-5(b). If the EEOC decides the conciliation efforts (which are confidential) failed, then the EEOC may sue the employer.
In the subject case, the EEOC investigated a charge of discrimination in which a female job applicant at Mach Mining alleged that the company refused to hire her as a miner because of her gender. After conducting its investigation, the EEOC sent a letter to Mach Mining informing the company that it had found reasonable cause to believe discrimination occurred and would be in touch soon to begin the conciliation process. When the EEOC sued the mining company a year later, it asserted that all conditions precedent to filing the lawsuit had been met, including the condition that the EEOC conciliate the matter. The mining company’s answer, however, contested this assertion, stating that the EEOC had not made good faith efforts to conciliate. The district court agreed with Mach Mining that the EEOC failed to meet this required condition precedent to filing suit. The Seventh Circuit Court of Appeals subsequently reversed the district court’s decision based on the premise that the EEOC’s conciliation efforts are not subject to judicial review. The Supreme Court heard the case on appeal from the Seventh Circuit.
The Supreme Court addressed the question of whether the EEOC’s attempts to conciliate are subject to judicial review, and if so, to what extent. The Supreme Court found that by definition, the language of Title VII requiring the EEOC to attempt settlement through “conference, conciliation, and persuasion” sets some minimal standards of communication between the EEOC and the employer. To wit, the Supreme Court determined that the EEOC must (1) inform the employer of the nature of the claim (including the employer’s allegedly discriminatory conduct and the person or class harmed by the conduct), and (2) must engage the employer in some discussion so as to give the employer an opportunity to discuss the matter and attempt to reach a resolution.
The Supreme Court also addressed the scope of the review, which tracks the requirements of the statute. The scope of judicial review extends to an inquiry as to (1) whether the EEOC properly informed the employer of the nature of the claim, and (2) whether it gave the employer an opportunity to discuss and rectify the alleged discriminatory practice. In practice, a sworn affidavit from the EEOC attesting to the fact that it met the statute’s requirements and failed to reach a resolution at conciliation should suffice in the absence of evidence to the contrary. If an employer also submits a sworn affidavit based on credible evidence stating that the EEOC failed to meet its duty to conciliate, then a court may engage in fact finding to make a determination. If the court finds that the EEOC did indeed fail to meet its obligations, then it may order the EEOC to conciliate.
Of course, this decision still allows the EEOC broad discretion in both the aggressiveness of its efforts to conciliate and in determining whether a proposed settlement with the employer is acceptable. The Supreme Court pointed out in its decision that Title VII’s language provides the EEOC with broad leeway and flexibility to choose its means and strategy relative to conciliation. The Supreme Court provided only a narrow scope of judicial review to determine whether the EEOC met Title VII’s minimum conciliation requirements.
Despite the minimal requirements of the EEOC’s conciliation efforts and the relatively toothless remediation in the event that the EEOC fails to meet those standards, this decision provides employers with some additional leverage in engaging in conciliation or responding to a suit filed by the EEOC. Employers should keep these conciliation requirements in mind when working with the EEOC.
*David R. Vance, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of labor and employment law. For more information about the EEOC’s practices, please contact: David R. Vance | drv@zrlaw.com | 216.696.4441
