While the Federal Government is shut down for now, the EEOC is trying shut down courts ability to review its conciliation efforts for good. As we previously reported here, the EEOC has aggressively pursued this theory by attacking defendants’ failure-to-conciliate affirmative defenses in two recent district court cases in the Seventh Circuit — in EEOC v. Mach Mining, LLC, No. 11-CV-879-JPG-PMF, 2013 WL 319337 (S.D. Ill. Jan. 28, 2013), and EEOC v. St. Alexius Medical Center, No. 12-CV-7646, 2012 WL 6590625 (N.D. Ill. Dec. 18, 2012). On September 27, 2013, the EEOC filed its reply brief in EEOC v. Mach Mining urging the Seventh Circuit to in support of its interlocutory challenge to a lower court’s ruling that the EEOC’s conciliation and investigation efforts are subject to at least some level of review.
Background Of EEOC v. Mach Mining
In EEOC v. Mach Mining, the EEOC alleged a pattern or practice of not hiring women for mining and related positions, or, in the alternative, maintaining a neutral hiring policy that has a disparate impact on women. The company asserted a number of affirmative defenses, including that the EEOC failed to conciliate in good faith. The EEOC moved for summary judgment on just that defense, arguing that the Seventh Circuit’s decision in EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005), compelled the conclusion that the EEOC’s conciliation process is not subject to judicial review. Mach Mining, 2013 WL 319337, at *1. While noting that the circuits were split on exactly what level of review was appropriate, the weight of circuit authority holds that the conciliation process is subject to at least some level of review. Mach Mining, 2013 WL 319337, at *3 (“[D]istrict courts within the Seventh Circuit, like all other courts to have considered the issue, have concluded that the EEOC’s conciliation process is subject to at least some level of review.”).
Subsequently, the district court granted the EEOC’s motion to certify the order to the Seventh Circuit pursuant to section 1292(b). EEOC v. Mach Mining, LLC, No. 11-CV-879-JPG-PMF, 2013 WL 2177770 (S.D. Ill. May 20, 2013). The district court certified two questions: (1) whether courts may review the EEOC’s informal efforts to secure a conciliation agreement acceptable to the EEOC before filing suit?; and (2) if courts may review the EEOC conciliation efforts, should the reviewing court apply a deferential or heightened scrutiny standard of review? Id. at *6.
EEOC’s Reply Brief
In its reply brief filed recently in the Seventh Circuit, the EEOC takes aim on employers now “routine tactic” of arguing in support of the “so-called failure to conciliate defense.” EEOC Reply Brief at 1. The EEOC argues that text of Title VII places conciliation solely within the its unfettered discretion and that if the court allows this defense to continue, “the result will be more litigation about conciliation and more victims of discrimination without remedies.” Id. at 2. Such a statement appears to be a direct attack on the recent decision we reported here in EEOC v. Bloomberg L.P., 07 Civ. 8383 (S.D.N.Y. Sept. 9, 2013), where Chief Judge Loretta Preska of the U.S. District Court of the Southern District of New York dismissed most all of the EEOC’s remaining claims of pregnancy discrimination against the employer, leaving many employees without recourse due to the EEOC’s, “shirking its pre-litigation investigation responsibilities.”
Arguing that it is a distinction without a difference, the EEOC’s Seventh Circuit brief challenges the contention while the its decision that conciliation has failed is not reviewable, its activities during the conciliation process itself should be subject to judicial review. Id. at 3. Instead, the EEOC argues that the entire conciliation process is within its exclusive purview based on “its experienced judgment” and that the EEOC alone should be “empowered to make that call.” Id. at 4. As such, the EEOC argues its pre-suit conciliation activities cannot be challenged since “…at the conciliation stage, the statute [Title VII] makes clear that the EEOC’s ‘word’ does govern.” Id. at 17. Therefore, the EEOC contends that “Courts should not, however, look behind the conclusion that conciliation has failed and review the underlying process.” Id. at 22. In conclusion, the EEOC argues that:
To be sure, other federal courts have reviewed the EEOC conciliation process, but those decisions are at odds with firmly established administrative law principles. Outside of the EEOC conciliation context, one is hard-pressed to find instances where courts recognize that the substantive agency decision is committed to the agency’s discretion yet the agency’s underlying process in reaching that decision is substantively reviewed.
Id. at 25.
Implications For Employers
These are important questions that could dramatically alter the balance of power for employers entering the conciliation process with the EEOC. Employers suffer specific and often dramatic reputational harm the instant the EEOC files suit. As we have previously reported here and here, federal courts around the country have recently taken the EEOC to task for its “shoot first, aim later” litigation tactics. If the EEOC’s position wins the day – and its pre-suit activities are immune from challenge – then it will be able to force its will on employers without any meaningful recourse to determine whether the EEOC’s conciliation efforts were made in good faith. Stay tuned!