The Supreme Court Holds That EEOC’s Conciliation Efforts Are Subject to Judicial Review, Albeit Narrow
A unanimous Supreme Court yesterday upheld the right of courts to review whether the Equal Employment Opportunity Commission (“EEOC”) adequately fulfilled its statutory obligation under Title VII of the Civil Rights Act of 1964 to engage in conciliation efforts with employers before filing lawsuits against them. In Mach Mining, LLP v. Equal Employment Opportunity Commission,1 the Court rejected the EEOC’s position that its conciliation efforts were unreviewable. It then went on to consider the appropriate standard of review and crafted a narrow standard of review of its own devising, not proposed by either party. The Court held that although some judicial review of the EEOC’s compliance with Title VII is proper, Title VII’s plain language allows only a very narrow examination of the EEOC’s decisions.2
BACKGROUND OF THE EEOC’S LAWSUIT
In 2008, the EEOC received a charge of discrimination from a woman who alleged that Mach Mining, LLC (“Mach Mining”) denied her employment as a coal miner on the basis of her gender.3 Following an investigation, the Commission determined there was reasonable cause to believe that Mach Mining had discriminated against the applicant, and began a conciliation process. After a year of conciliation—the details of which are not disclosed in the record—the EEOC issued a letter to Mach Mining informing the company that the conciliation process was not successful. The EEOC then filed an enforcement action in the U.S. District Court for the Southern District of Illinois.
Mach Mining argued in the litigation that the EEOC’s conciliation efforts were insufficient, and that this failure to meet a necessary pre-suit requirement warranted dismissal of the case. The EEOC moved for partial summary judgment, arguing that its conciliation process was not subject to any judicial review.4 The district court denied the Commission’s motion, but certified for interlocutory appeal the question whether and under what standard courts may review the EEOC’s “informal efforts to secure a conciliation agreement acceptable to the EEOC before filing suit.”5
The Seventh Circuit accepted the certified appeal and reversed, relying primarily on Title VII’s statutory language to hold that “an alleged failure to conciliate” cannot support dismissal of a discrimination suit on the merits.6 The Seventh Circuit was the first Circuit Court to hold that the EEOC’s obligation to conciliate was not subject to judicial review; the Second, Fifth, and Eleventh Circuits had adopted a multipart inquiry into the sufficiency of the conciliation process, while the Fourth, Sixth and Tenth Circuits had set a minimal “good faith” standard. In light of the Circuit split, the Supreme Court granted Mach Mining’s petition for certiorari.
THE SUPREME COURT’S DECISION
The Supreme Court unanimously reversed the Seventh Circuit and remanded for further proceedings. The Court’s opinion, by Justice Kagan, announces a narrow standard of review that will clarify the Commission’s responsibilities in conciliation going forward.
The Court quickly dispatched with the first question presented—whether any judicial review is permitted— ruling that administrative law precedent establishes a strong presumption that agency action is subject to judicial review. Finding that the Government had not met its “heavy burden” to show that Congress prohibited judicial review of the EEOC’s compliance with Title VII’s conciliation requirement, the Court turned to the standard of review.7
As to the appropriate standard of review, the Court examined and rejected the standards proposed by the Government and Mach Mining. The Government had argued that, should some judicial review be permitted, the EEOC should be able to meet its burden by providing simple representations that the agency had engaged in conciliation efforts and that those efforts had not been successful.8 Justice Kagan dismissed this argument, noting that such a review would amount to accepting the EEOC’s “say- so that it complied with the law.”9
Mach Mining had argued for a robust review, citing the standards used in the National Labor Relations Act (“NLRA”) that require a court to ensure that negotiations were conducted in good faith.10 The Court, “reject[ed] any analogy between the NLRA and Title VII,” because Title VII, unlike the NLRA, “ultimately cares about substantive results,” namely to “eliminate unlawful discrimination from the workplace.”11 Justice Kagan further noted that Mach Mining’s proposed standard is at odds with “the latitude Title VII gives the Commission to pursue voluntary compliance” as well as with the statute’s “protection of confidentiality of conciliation efforts.”12
Instead, the Court held that a reviewing court should examine whether the EEOC “inform[ed] the employer about the specific allegation . . . describ[ing] both what the employer has done and which employees (or class of employees) have suffered as a result.”13 A court should also review whether the EEOC has “engage[d] 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.”14
The Court wrote that 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 show that it has met the conciliation requirement.”15 Employers are afforded the opportunity to provide evidence of their own to indicate that the EEOC has not met its obligation to conciliate.16 In such a situation, “a court must conduct the factfinding necessary to decide that limited dispute,” and if a court decides in favor of the employer, the remedy is to order the EEOC to engage in the required conciliation.17
The practical implications of the Court’s decision depend in large part on how the EEOC acts in response to it. Before Mach Mining, the Commission engaged in conciliation efforts in the bulk of cases, but there were reports from employers that in some instances the agency would engage in only token efforts prior to filing an enforcement lawsuit. Although the EEOC now will be required to establish a record of conciliation in each case, the limited standard of judicial review is unlikely by itself to incent the EEOC to feel obliged to engage in strenuous efforts to conciliate disputes if it is not so inclined.
The Court did not provide guidance regarding other issues that practitioners face when conciliating discrimination claims—for example, the level of detail that the EEOC should provide to the employer regarding the individuals allegedly harmed by the employment practice at issue. The Court’s statement requiring disclosure of “which employees (or class of employees) have suffered,” may be a source of later litigation in the district courts. In the end, the EEOC would appear to have fairly broad leeway to decide how substantially to change its general practices for conciliation going forward, which is, in the Court’s view, what Title VII intended.