Supreme Court: The EEOC Must Answer For Its Efforts To Conciliate

On Wednesday, April 29, 2015, the United States Supreme Court unanimously held that courts may review whether the United States Equal Employment Opportunity Commission (“EEOC”) fulfilled its obligations to engage in conciliation efforts with employers before filing lawsuits against them under Title VII. Writing for the unanimous Court in Mach Mining, LLP v. Equal Employment Opportunity Commission, 575 U.S. ___ (2015), Justice Elena Kagan rejected the EEOC’s argument that Title VII provided no standards by which a court might evaluate the sufficiency of the EEOC’s conciliation efforts. Justice Kagan emphasized the importance of conciliation within the scheme of Title VII and wrote that absent judicial review, “[t]he Commission’s compliance with the law would rest in the Commission’s hands alone.” The case in Mach Mining was brought after a woman filed a Charge of Discrimination with the EEOC claiming that the company refused to hire her as a coal miner because of her sex. The EEOC thereafter found reason to believe that Mach Mining had also discriminated against a class of women who unsuccessfully applied for mining-related jobs. The EEOC notified Mach Mining that it intended to begin informal conciliation. After a year of discussions, the EEOC advised Mach Mining in 2011 that the conciliation process had failed, and filed a complaint in the district court. In its answer to the Complaint, Mach Mining argued that the EEOC had failed to conciliate in good faith. In response, the EEOC argued that its conciliation efforts were not reviewable by the court. The district court certified that issue for appeal to the Seventh Circuit. On appeal, the Seventh Circuit held that the EEOC’s conciliation efforts were not reviewable by the court. The Seventh Circuit found that allowing court review of the EEOC conciliation process would create an avenue for employers to bypass liability for discriminatory behavior. The Seventh Circuit’s decision created a circuit split, as the Second, Fourth, Fifth, Sixth, Eighth, and Ninth Circuits have all held that the EEOC’s duty to conciliate is reviewable to some extent. The Supreme Court agreed to hear the case in June of 2014. The Court’s focus was whether Title VII’s broad grant of authority to the EEOC allowed room for judicial review of the conciliation process. The Justices sought to define a workable standard that would allow for limited review while still giving the EEOC wide discretion. In Wednesday’s opinion, the Court found that a court may review whether or not the EEOC “satisfied its statutory obligation to attempt conciliation before filing suit. But we find that the scope of that review is narrow,” and wrote further that the EEOC may still “determine the kind and amount of communication with an employer appropriate in any given case.” However, the Court determined that the EEOC’s “bookend” letters to Mach Mining were insufficient to prove that it had “actually, and not just purportedly, tried to conciliate a discrimination charge.” To comply with Title VII, the Supreme Court held that “[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.” Judicial review is limited to ensuring that the EEOC has sworn that it has performed the conciliation process, and weighing any evidence provided by the employer that the EEOC had not actually participated in the conciliation process as sworn. Employers' Takeaway: The decision by the Supreme Court in Mach Mining ensures that the EEOC must afford employers with an adequate opportunity to discuss and address any perceived Title VII violation through its conciliation process. The decision makes clear that it is not sufficient for the EEOC to merely notify employers of the alleged violation and then inform the employer that the conciliation process has ended. If your organization receives a “reasonable cause” finding, monitor what efforts the EEOC makes to conciliate and pursue voluntary compliance. If the EEOC fails to do so, employers may seek to compel the EEOC to make an effort compliant with its statutory obligations before the EEOC files suit. Employers, however, should note that the decision in Mach Mining explicitly gives the EEOC broad discretion in the conciliation process and the decision cannot be relied upon as an opportunity to challenge all EEOC conciliation efforts. For more information regarding this case and to learn how your business can implement best practices when dealing with the EEOC, please contact John C. Petrella, Director of the firm's Employment Litigation Practice Group at jpeteralla@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.