Under Title VII, if the EEOC issues a cause finding, it must then try to remedy the alleged unlawful employment practice through “informal methods of conference, conciliation and persuasion.” 42 U. S. C. §2000e–5(b). If, and only if, it is unable to obtain a conciliation agreement that is “acceptable to the commission,” may the agency then file suit. Until now, courts were divided on whether this statutorily-required duty was subject to judicial review.
On Wednesday, April 29, 2015, the U.S Supreme Court ruled that courts do have authority to review whether the EEOC has fulfilled its conciliation duties and thereby unanimously vacated the Seventh Circuit’s ruling that EEOC’s conciliation efforts were unreviewable. Mach Mining LLC v. EEOC, Case No. 13-1019, 575 U. S. ____ (2015). “We hold that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit . . . recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer that is appropriate in any given case.” The Court also found that “the scope of that review is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice of the claim and an opportunity to discuss the matter.” Specifically, the EEOC must notify the employer by describing the employer’s allegedly discriminatory practice and which employees (or class of employees) have allegedly suffered. Further, the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegation.
While it remains unknown how courts will now determine whether the EEOC has met its conciliation duties, the decision offers opportunity to provide guidance to employers to best navigate the conciliation process moving forward. Accordingly, an employer faced with a cause finding by the EEOC and/or, by implication, a state or local Fair Employment Practice Agency (“FEPA”), should position itself well to raise—in good faith—a “failure to conciliate defense” should litigation ensue. Employers should:
- Take the conciliation process seriously by insisting upon and engaging in good-faith negotiations;
- Maintain and demand reasonable and flexible positions;
- Document internally and through correspondence with the EEOC all conciliation efforts to use as potential concrete evidence that the EEOC did not perform its duties. Specifically, documentary proof that the EEOC did not: (1) provide the requisite information about the charge; (2) attempt to engage the employer; and/or (3) bargain from an initial offer in conciliation, all may be independently interpreted as a failure to conciliate.