Why it matters
The U.S. Supreme Court handed a victory—albeit limited—to employers when it determined that courts may consider the sufficiency of the Equal Employment Opportunity Commission’s (EEOC) conciliation efforts prior to bringing suit against an employer pursuant to Title VII of the Civil Rights Act. The unanimous Court acknowledged that the federal agency has discretion on “how to conduct conciliation efforts and when to end them,” but the justices in Mach Mining LLC v. EEOC said courts could still review the process. While the opinion, authored by Justice Elena Kagan, rejected the EEOC’s contention that its conciliation efforts were not subject to judicial oversight, the justices emphasized that the review was “narrow” and not the “deep dive” sought by the employer. Such limits on review are necessary in order to respect the EEOC’s discretion in enforcing the statute as well as the confidentiality imbued in the conciliation process, the Court said. Going forward, the EEOC can provide a sworn affidavit to the court to satisfy its conciliation obligations, the justices explained, but the inquiry may continue if an employer presents evidence that the Commission did not provide adequate information or failed to engage in conciliatory efforts. While employers can now argue in a lawsuit that the Commission’s conciliation attempts failed, the narrow review and the remedy set by the justices (a do-over on conciliation) keep the victory limited.
A woman filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that Mach Mining LLC had refused to hire her as a coal miner because of her sex. After investigating the allegation, the agency found reasonable cause to believe that the employer discriminated against a class of women who applied for similar jobs.
The EEOC sent a letter to Mach Mining announcing its determination and inviting both the company and the complainant to participate in “informal methods” of dispute resolution, with a Commission representative to contact them to begin the conciliation process.
Roughly one year later, the EEOC sent a second letter to Mach Mining. This time, the agency stated that “such conciliation efforts as are required by law have occurred and have been unsuccessful,” calling any additional efforts “futile.” The EEOC then filed suit in Illinois federal court claiming Mach Mining engaged in sex discrimination. In its complaint, the Commission asserted that “[a]ll conditions precedent to the institution of this lawsuit ha[d] been fulfilled.”
Mach Mining disagreed, answering the complaint and arguing that the EEOC failed to conciliate in good faith. The agency moved to dismiss, informing the court that its conciliation efforts are not subject to judicial review.
The federal district court sided with Mach Mining but the Seventh Circuit Court of Appeals reversed. Noting a split among the circuits, Mach Mining filed a writ of certiorari, which the justices granted.
In a unanimous decision authored by Justice Elena Kagan, the justices reversed.
Title VII of the Civil Rights Act “sets out a detailed, multi-step procedure” for the Commission to enforce the statute, which begins when an employee files a charge of an unlawful workplace practice, the Court explained. If the agency finds reasonable cause—as it did in the Mach Mining case—it must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion,” pursuant to Section 2000e-5(b).
The statute also provides the EEOC with a great deal of leeway and “the ultimate decision” to make a deal with an employer or file a lawsuit.
However, “this Court applies a ‘strong presumption’ favoring judicial review of administrative action,” Justice Kagan wrote, and the obligation to attempt conciliation of a discrimination charge prior to filing a lawsuit “is a key component of the statutory scheme,” serving “as a necessary precondition to filing a lawsuit.”
“Yes, the statute provides the EEOC with wide latitude over the conciliation process, and that feature becomes significant when we turn to defining the proper scope of judicial review,” the Court said. “But no, Congress has not left everything to the Commission.” Title VII provides “concrete standards” pertaining to what the conciliation efforts must entail, such as telling the employer about the claim and providing an opportunity to discuss the matter in an effort to achieve voluntary compliance.
Finding that nothing could overcome the presumption favoring judicial review of the EEOC’s administrative action, the justices then defined the scope of such oversight.
“The appropriate scope of review enforces the statute’s requirements,” the Court said, “that the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice—but goes no further. Such limited review respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the law.”
Instead of adopting “the most minimalist form of review imaginable” as suggested by the EEOC or the “deep dive” recommended by Mach Mining, Justice Kagan landed the Court somewhere in between.
“The statute demands … that the EEOC communicate in some way (through ‘conference, conciliation, and persuasion’) about an ‘alleged unlawful employment practice’ in an ‘endeavor’ to achieve an employer’s voluntary compliance,” the Court wrote. “That means the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result.”
The EEOC must also “try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice,” the justices added.
This “relatively barebones review” ensures compliance with the statute and allows the EEOC to exercise all of its discretion on how to conduct conciliation efforts and when to end them, the Court said. It also honors the confidentiality of the conciliation process “because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.”
A sworn affidavit from the EEOC “stating that it has performed the obligations noted above but that its efforts have failed will usually suffice” to meet the conciliation requirement, Justice Kagan wrote. “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.”
As for a remedy, the Court stuck to conciliation. “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,” the justices said.
“Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts’ authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims,” the Court concluded. “But the scope of that review is narrow, reflecting the abundant discretion the law gives the EEOC to decide the kind and extent of discussions appropriate in a given case. In addressing a claim like Mach Mining’s, courts may not impinge on that latitude and on the Commission’s concomitant responsibility to eliminate unlawful workplace discrimination.”
To read the opinion in Mach Mining LLC v. EEOC, click here.