Employers and the EEOC faced off again recently, this time over the EEOC’s obligation to engage in conciliation before commencing litigation against an employer. In Mach Mining, LLC v. EEOC, the employer prevailed in claiming that a federal court may decide whether the EEOC met that obligation but made the EEOC’s burden in establishing that requirement fairly minimal.  Title VII of the Civil Rights Act of 1964 requires that the agency, prior to commencing suit against an employer, engage in “informal methods of conference, conciliation, and persuasion.”

In partial response to a lawsuit brought against it by the EEOC, Mach Mining disputed the EEOC’s assertion that it met all preconditions to initiating the lawsuit and said that the agency had failed to conciliate in “good faith.”  The EEOC moved for summary judgment on that issue and argued that its obligation to engage in conciliation is not subject to judicial review.  The EEOC has long maintained that a determination of whether it has met its statutory duty in this regard cannot be subject to second guessing by federal courts.

EEOC Argues Courts Can’t Review Conciliation Efforts

By saying that its conciliation efforts were not subject to judicial review, the agency demonstrated to the district court only that it sent two letters on the subject of conciliation.  In the first, after announcing the agency’s finding that there was reasonable cause to believe the employer engaged in unlawful hiring practices, the EEOC told the company that its representative “will be in contact with each party in the near future to begin the conciliation process.”  In the second letter about a year later, the EEOC announced to the employer that the conciliation effort had failed and further efforts would be “futile.”  According to the EEOC, those two letters were adequate to show that conciliation took place and that courts could not look beyond those facts to determine whether the EEOC actually fulfilled its conciliation obligation.

The district court agreed with the employer, but the U.S. Court of Appeals for the Seventh Circuit reversed that decision.  The court said that the EEOC’s conciliation duty was entrusted “solely to the EEOC’s expert judgment” and noted that that having courts review the EEOC’s conciliation efforts would undermine the agency’s enforcement efforts and delay and complicate litigation.

Supreme Court Says Yes, Courts Can Review Conciliation to a Limited Degree

The Supreme Court reversed the Seventh Circuit’s decision.  The Court rejected the notion that the EEOC’s conciliation efforts were not subject to judicial review and explained that administrative action is presumed to be subject to review.  At the same time, the Court refused to permit a “deep dive” into the issue by determining whether the EEOC engaged in “good faith” negotiations. Instead, the Court held that the EEOC “must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.”  The Court made clear that lower courts could not generally entertain debate over the propriety of the EEOC’s conciliation efforts.  Instead, an affidavit from the EEOC that it met the above requirements would ordinarily suffice unless the employer presented “credible evidence of its own,” such as an affidavit, “that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim.” However, if the Court entered into this inquiry and found that the EEOC did not properly engage in its statutory conciliation efforts, the proper remedy was returning to the conciliation process.

Employers Facing EEOC Litigation – Insist on Conciliation

The Supreme Court’s decision represents only a partial victory for employers.  The Court plainly rejected the EEOC’s longstanding position that its conciliation efforts could not be reviewed. The Court also placed clear limits on the right of courts to do so and limited the remedy available to employers in cases where the EEOC did not engage in proper conciliation. Whether or how the EEOC will change its conciliation process remains to be seen, but an employer’s right to contest an action against it where the EEOC races to Court and fails to conciliate will remain viable.

Reference:  Mach Mining, LLC v. EEOC, U.S. Supreme Court No. 13-1019 (April 29, 2015).