Yesterday, the Supreme Court held that courts have the authority to review whether the Equal Employment Opportunity Commission (EEOC) has fulfilled its statutory duty to attempt to conciliate charges of discrimination prior to filing suit, reversing a prior decision by the Seventh Circuit Court of Appeals.
When the EEOC determines that there is “reasonable cause” to believe that the allegations in a discrimination charge are true, Title VII of the Civil Rights Act requires that prior to filing a lawsuit EEOC “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). At issue in this case, EEOC v. Mach Mining, was whether the EEOC’s conciliation efforts were subject to judicial review, and if so the proper extent of that review.
Before yesterday’s decision, most federal courts had held that the EEOC’s conciliation process was subject to review by a court, but the type and level of scrutiny varied by circuit. In Mach Mining, the Seventh Circuit broke ranks with other federal appellate courts, holding that the EEOC’s conciliation efforts were not subject to judicial review.
Echoing the Seventh Circuit’s view, at the Supreme Court the EEOC argued that since Title VII provides “no standards by which to judge” the EEOC’s performance of its statutory duty, and gives the agency broad discretion to decide the extent of its conciliation efforts, courts had no “judicially manageable” criteria with which to review the EEOC’s efforts.
Mach Mining, on the other hand, argued that courts should be able to consider whether the EEOC negotiated in good faith over a discrimination claim, including letting the employer know the minimum required to resolve the claim, laying out the factual basis for its positions, and engaging in a negotiation with the employer as to what would constitute an acceptable settlement of a charge. Mach Mining specifically argued that the review should be analogous to determinations made under the National Labor Relations Act as to whether employers and unions engaged in “good faith” collective bargaining.
The Court rejected both parties’ views and adopted a middle ground. The Court noted that the EEOC’s position would require courts to “simply accept the EEOC’s say-so that it complied with the law.” In contrast, Mach Mining’s position would impinge on the agency’s “leeway” and “flexibility” in fulfilling the conciliation requirement.
Writing for a unanimous Court, Justice Kagan reiterated that, “The statute demands . . . that the EEOC communicate in some way (through ‘conference, conciliation, and persuasion’) about an ‘alleged unlawful employment practice’ in an ‘endeavor’ to achieve an employer’s voluntary compliance.” According to the Court, this means, at a minimum, the EEOC must inform the employer about the specific allegation, what the employer has done and which employees (or class of employees) have suffered as a result, and engage in some form of discussion so as to allow the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of these requirements, while “barebones,” is appropriate and manageable under Title VII, the Court concluded.
While the decision is certainly a victory for employers, it remains to be seen if this will result in a true departure in the status quo as to how the EEOC participates in the conciliation process. The EEOC often refuses during conciliation to provide even the most basic information needed for an employer to assess the strength of the EEOC’s claims and the risks of further litigation, making the conciliation process essentially worthless. Given the limited and somewhat cryptic standard of review, a particular concern is whether this decision will provide the needed “stick” for the EEOC to truly change its behavior and actually provide information that is helpful to assess whether an employer would be better served by a voluntary resolution than by protracted and expensive EEOC litigation. It remains to be seen how lower courts interpret the Supreme Court’s decision. If lower courts read the statutory language requiring “conference, conciliation, persuasion” to require the EEOC to provide actual meaningful information during conciliation, employers will benefit by having actual information about the charge at issue and the ability to negotiate a voluntary resolution before facing the cost and burden of defending an EEOC initiated lawsuit.