The EEOC has been consistent in its message about conciliation: nobody should tell us how to conciliate our cases, not even the courts.

Conciliation is a mandatory step the EEOC must take before filing a case in federal court. It is designed to allow employers an opportunity to fix potential problems before the government resorted to costly litigation, But consistent with its aggressive position asserted in the Illinois federal courts and before the Seventh Circuit, the EEOC recently brought the fight to defendants’ failure-to-conciliate affirmative defense in the U.S. District Court for the Southern District of Texas, insisting the courts have no oversight of what happens in that critical conciliation process. In EEOC v. Bass Pro Outdoor World, LLC, et al., Case No. 11-CV-3425 (S.D. Tex. Oct. 2, 2013), Judge Keith Ellison held his ground, though, holding that Fifth Circuit law plainly allows judicial review of the EEOC’s conciliation attempts.

The Background In EEOC v. Bass Pro Outdoor World, LLC, et al.

In EEOC v. Bass Pro Outdoor World, LLC, et al., defendants filed a motion for summary judgment, urging dismissal of the case based on the EEOC’s failure to attempt conciliation in good faith. In response, the EEOC filed its own motion for partial summary judgment, arguing that “whether the EEOC attempted conciliation is judicially reviewable, but how the EEOC conducted conciliation is not.” Id. at 1.

The Court rejected the EEOC’s argument, noting that “it is simply not open to the Court to hold unreviewable whether the Commission has satisfied its duty to attempt conciliation.” Id. at 4. The Court held that it was bound by the Fifth Circuit’s unambiguous ruling that courts must evaluate whether the EEOC has adequately fulfilled its statutory conciliation requirement, reasoning “the reasonableness and responsiveness of the EEOC’s conduct under all the circumstances.” Id. at 3. Indeed, the Fifth Circuit has set forth a three-part test for this inquiry, requiring the EEOC to: (1) outline to the employer the reasonable cause for its belief that Title VII has been violation; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. Id. at 4. As such, “as far as this Court [was] concerned, the Fifth Circuit has spoken on the matter; this Court is not free to adopt the EEOC’s understanding of Title VII. Id. at 5.

Judge Ellison did not end his analysis there. The Court bore down on the EEOC’s arguments that defendants lack standing under the Administrative Procedures Act (“APA”) and that sovereign immunity and separation of power principles prevent the Court from reviewing the EEOC’s conciliation efforts. First, the Court flatly rejected the EEOC’s argument regarding APA standing, noting that the APA, which allows a private individual to bring suit based on a legal wrong committed by an agency, does not govern the suit because the case was brought by the agency, not an individual. As such, “the APA is simply not relevant.” Id. Moreover, the Court noted that standing was not even a relevant concept, where defendant simply sought to challenge a statutory precondition to the EEOC’s authority to file suit. Id. at 5-6.

Second, the Court rejected the EEOC’s sovereign immunity arguments as non-sense. Generally, sovereign immunity protects the government from being sued without its consent. However, the Court refused to apply the doctrine in this context, explaining that “[i]t would make little sense for Congress to impose certain conditions precedent on the EEOC’s authority to bring suit if the EEOC could just turn around and claim sovereign immunity from judicial enforcement of the condition.” Id. at 7.

Third, the Court rejected the EEOC’s separation of powers argument, noting that the EEOC failed to cite any case in which a statutorily required precondition to filing a lawsuit was found unreviewable by the Court. Id. at 8. Rather, the Court observed that while judges do not “wade” into the EEOC’s decision to accept or reject specific conciliation offers, Congress has tasked the courts with ensuring that its pre-litigation conciliation directive is heeded. Id. at 8, 10.

Finally, in a stinging rebuke of the EEOC’s recent attempts to evade review of its statutory obligations, the Court noted that it “cannot agree” with the EEOC’s increasingly advanced argument that its conciliation efforts are not subject to judicial review. Rather, the Court held that such review is mandated by not only binding Fifth Circuit precedent, but also the text and purpose of the statute. Accordingly, the Court denied the EEOC’s motion. Id. at 10.

Implications For Employers

As the Court in EEOC v. Bass Pro Outdoor World, LLC, et al. correctly observed, the EEOC continues to advance its arguments that its statutorily-mandated, conciliation efforts are not subject to review. A number of courts have expressly rejected this argument and criticized the EEOC for its “shoot first, aim later” tactics. However, as the EEOC’s arguments have not been clearly laid to rest in all Circuits, employers can anticipate that the EEOC will continue to lead the march against any check on whether it engaged in good faith efforts to resolve conflicts without litigation.