Resolving a split among lower courts on the question of whether the US Equal Employment Opportunity Commission’s (EEOC) efforts at conciliation before bringing a lawsuit against an employer (under Title VII of the Civil Rights Act) are open to judicial review, the US Supreme Court has held that courts may review the sufficiency of the EEOC’s notice of and opportunity for conciliation but the EEOC has discretion on “how to conduct conciliation efforts and when to end them.”

Conciliation is important in EEOC matters, occurring in cases in which the administrative agency finds reasonable cause to believe an employer has violated a statute it enforces. The EEOC may file a lawsuit only if it has been unable to secure an acceptable conciliation agreement. In many federal courts, employers sued for discrimination by the EEOC after attempts at conciliation have failed cite flaws in the EEOC’s conciliation process as a defense to the lawsuit. In MachMining, LLC v Equal Employment Opportunity Commission, the Supreme Court emphasized the importance of conciliation within the scheme of Title VII and stated that, absent judicial review, “[t]he Commission’s compliance with the law would rest in the Commission’s hands alone”). However, according to the decision, courts should not do a “deep dive” into the conciliation process.

Earlier decisions

Title VII requires the EEOC to endeavor to conciliate a dispute with an employer after it finds reasonable cause to believe discrimination has occurred and before the EEOC files a lawsuit. In the district court, Mach Mining argued that the EEOC had failed to conciliate in good faith prior to filing its lawsuit. On interlocutory appeal, the US Court of Appeals for the Seventh Circuit held that Title VII’s directive to conciliate was not subject to judicial review.

Judicial Review is necessary

Writing for the unanimous Supreme Court, Justice Elena Kagan rejected the EEOC’s argument that Title VII provided no standards by which a court might evaluate the sufficiency of the EEOC’s conciliation efforts. She emphasized the importance of conciliation within the scheme of Title VII and wrote that absent judicial review, “[t]he Commission’s compliance with the law would rest in the Commission’s hands alone.”

Courts should not do a “deep dive”

Turning to the issue of what level of review was appropriate, the Court rejected the employer’s proposal that courts evaluate conciliation in the same manner they evaluate good faith bargaining under the National Labor Relations Act (NRLA). According to Justice Kagan, the NLRA and Title VII are different statutory schemes and courts should not do a “deep dive” into the conciliation process.

Conciliation obligations

According to the Court, employers are entitled to information that will allow them the opportunity to remedy the allegedly discriminatory practice. This includes information on what the employer had done and the persons harmed.

Instructions to courts in reviewing EEOC conciliation efforts

A sworn affidavit from the EEOC outlining the performance of its conciliation obligations will typically be enough to show that the EEOC has met its obligations to conciliate. But, citing a recent Supreme Court decision involving the Internal Revenue Service, this case contemplates that a court may continue the inquiry beyond an EEOC affidavit.

The Court stated that such fact finding would occur if the employer provides evidence that the EEOC did not provide the employer with adequate information or the EEOC did not attempt to engage in a conciliation discussion. If employers demonstrate insufficient conciliation, the Court explained, “the appropriate remedy is to order the EEOC to undertake the mandated effort to obtain voluntary compliance.” Interestingly, while the Court rejects using an NLRA-type good faith review of EEOC conciliation efforts, the decision in the Inland Revenue case permits the court to review the EEOC’s action based on a showing of bad faith.

Looking forward

Shortly after the ruling, the EEOC posted a press release praising the Supreme Court’s decision, and quoting EEOC Chair Jenny Yang as stating that the EEOC remains committed to the conciliation process. To the extent that EEOC conciliation efforts are litigated in the future, it is most likely such litigation will occur at the beginning of an EEOC lawsuit, with the employer asserting the EEOC did not properly provide notice of the alleged discriminatory conduct or the persons harmed, and therefore denied it an opportunity to conciliate.

- John L. Sander