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EEOC Conciliation Efforts Subject to Narrow Judicial Review


June 10, 2015
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The U.S. Supreme Court recently held that courts do not have to take the Equal Employment Opportunity Commission (EEOC) at its word with regard to whether the agency fulfilled its conciliation obligation in discrimination cases.

However, it found that the scope of judicial review is limited to whether the EEOC gave the employer notice of the charge and provided an opportunity to achieve voluntary compliance

The Legal Background

Prior to filing an employment discrimination suit under Title VII of the Civil Rights Act of 1964, the EEOC must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Once the EEOC determines that conciliation has failed, it may file an employment discrimination suit in federal court. However, “[n]othing said or done during” conciliation may be “used as evidence in a subsequent proceeding without written consent of the persons concerned.”

The Facts of the Case

Mach Mining LLC v. EEOC involved a sex discrimination charge against Mach Mining, LLC. Upon determining that reasonable cause existed to believe that the company had engaged in unlawful hiring practices, the EEOC sent a letter inviting Mach Mining and the complainant to participate in informal conciliation proceedings and notifying them that a representative would be contacting them to begin the process. About a year later, the EEOC sent Mach Mining another letter stating that it had determined that conciliation efforts had been unsuccessful. The agency subsequently filed a discrimination suit. In responding to the suit, Mach Mining alleged that the EEOC had failed to conciliate in good faith. The EEOC maintained that its conciliation efforts were not subject to judicial review and that, regardless, the two letters it sent to Mach Mining provided adequate proof that it had fulfilled its statutory duty. While the district court disagreed with the EEOC, the Seventh Circuit Court of Appeals overturned its decision, finding that the EEOC’s statutory conciliation obligation was unreviewable.

The Supreme Court’s Decision on Conciliation Efforts

In a unanimous decision, the Supreme Court held that the EEOC’s conciliation efforts were open to judiciary scrutiny, although the scope is narrow. In reaching its decision, the Court noted that it has recognized a “strong presumption” that Congress means to allow judicial review of administrative action. In addition, it found that although Congress gave the EEOC wide latitude to choose which informal methods to use during the conciliation process, it did not deprive courts of judicially manageable criteria by which to whether it fulfilled it statutory obligation. With regard to the appropriate standard of review, the Court rejected the positions adopted by both the EEOC and Mach Mining. According to the Court: The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. This limited review respects the expansive discretion that Title VII gives the EEOC while still ensuring that it follows the law. Under the Court’s standard, the EEOC must notify the employer about the specific discrimination allegation, including what the employer has done and which employees (or class of employees) have suffered. In addition, the EEOC must also attempt to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. With regard to the proof required, the Court stated that a sworn affidavit from the EEOC stating that it has performed these obligations should be sufficient. If the employer provides concrete evidence 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 may then conduct the fact-finding required to resolve that specific issue. For more information on the The U.S. Equal Employment Opportunity Commission (EEOC) see our related posts: –EEOC Enforcement Report Reveals Significant Drop in Charges -EEOC by the Numbers: Latest Statistics Reveal Enforcement Trends -EEOC Files First Transgender Discrimination Suit