. . .  just not very much.

Title VII was passed with a strong bias toward voluntary, non-litigation methods of dispute resolution. Indeed, the statute requires that even when the EEOC has found probable cause, the Commission “shall endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. section 2000e-5(b). It was a good idea then and remains so today.

But particularly in recent years, the EEOC has forgone this commonsense statutory imperative in the apparent hopes of scoring greater publicity. Many courts have questioned, and even dismissed, cases brought by the EEOC because of its use of only the most feeble conciliation efforts, if any at all. We blogged one such case over four years ago, in which a Missouri District Court dismissed a pattern and practice claim that the EEOC claimed affected 50 employees, yet it had attempted conciliation on only a handful of individual claims. Other courts adopted different approaches.

On April 29, the Supreme Court resolved the issue, but likely not in a way that will satisfy anyone. In Mach Mining, LLC v. EEOC, Case No. 13-1019 (April 29, 2015), the EEOC sought to bring a sex discrimination case based upon a coal mine’s refusal to hire a female applicant. Our sister blog, the Employment Law Spotlight, also discusses this case. The district court found that the EEOC had failed to conciliate the matter in good faith and dismissed the case. The Seventh Circuit went entirely the other way and found that the Commission’s refusal or failure to conciliate in good faith or otherwise was not even reviewable.

The Supreme Court, in a unanimous decision, followed the clear statutory language requiring conciliation of the underlying decision, a victory for employers, but it went on to provide only a watered-down standard for reviewing its efforts. It found that the EEOC must

  • “inform the employer about the specific allegation” (which is typically done in the “probable cause” letter),
  • identify the affected employees or class of employees, and
  • try to engage the employer in some form of discussion.

This last item may be among the fuzziest standards pronounced by the Court this year.

The Commission can show that it met the standard by way of affidavit, and if the employer disagrees it must provide “credible evidence of its own” that it did not do so. Even if the court finds for the employer, the remedy is not dismissal, but simply an order that the EEOC conciliate while the case is stayed.

The Mach Mining decision looks at first glance to be a win for employers, but it’s really a lost opportunity for everyone. In a day and age when the vast majority of Americans and responsible employers agree with Title VII’s goals, genuine conciliation efforts, particularly in complex class actions, may be a far more effective and less expensive and acrimonious means than litigation. This is particularly true given the large number of cases that ultimately settle – conciliating earlier in good faith would be a better path to achieve Title VII’s purposes.

The bottom line: The EEOC must try to conciliate before filing suit, but its efforts don’t need to be terribly robust.