Supreme Court Establishes Narrow Scope of Review of EEOC’s Conciliation Efforts

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Whether the Equal Employment Opportunity Commission, after finding discrimination has occurred, has met its statutory duty to attempt conciliation with the employer to remedy the discrimination is a matter subject to narrow judicial review, the U.S. Supreme Court held in Mach Mining, LLC v. EEOC.

Background.  Under Title VII, the EEOC investigates Charges of Discrimination that are filed by applicants and employees, both current and former, against an employer.  If the EEOC determines that there is reasonable cause to believe that discrimination existed, the EEOC is obligated first to “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  Only after conciliation has failed can the EEOC file suit against the employer.

In the present case, the EEOC found reasonable cause to believe that the employer had engaged in sex discrimination.  The EEOC sent a letter to the charging party and the company inviting them to engage in informal conciliation proceedings, and stated that an EEOC representative would be in contact with them to start the process.  Approximately a year later, the EEOC sent another letter, stating that conciliation efforts had been unsuccessful.  It then filed suit against the company.  The company argued that the EEOC had not attempted to conciliate in good faith.  The EEOC countered that its conciliation efforts were not subject to judicial review, but that, in any case, the two letters were sufficient proof that it had fulfilled its statutory duty to conciliate.

The federal district court found that it could review the EEOC’s conciliation efforts.  The EEOC appealed the district court’s ruling to the U.S. Court of Appeals for the 7th Circuit, which held to the contrary – that the conciliation efforts were unreviewable.  The company then challenged the 7th Circuit’s decision.

The Supreme Court’s Ruling.  The Supreme Court first held that courts have the authority to review whether the EEOC met its statutory obligation to attempt conciliation.  This obligation requires the EEOC to notify the employer of the unlawful discriminatory practice and provide the employer an opportunity to rectify the practice.

The Supreme Court then held that the scope of review is narrow, “enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance.”  In so holding, the Supreme Court rejected the EEOC’s suggestion for a minimalist form of review – taking the two letters at face value.  This, the Supreme Court noted, would be to “simply accept the EEOC’s say-so that it complied with the law” and does not permit a court to determine if the EEOC actually complied with its obligations.  The Supreme Court also rejected the company’s suggestion of a “deep dive” review, based upon standards set forth in the National Labor Relations Act that the parties bargain “in good faith.”  The Supreme Court noted that the NLRA is about process, while Title VII is about substantive results, thereby rendering “the NLRA’s duty of good faith bargaining a poor model for review of Title VII’s conciliation requirement.”

Instead, the Supreme Court established a “relatively barebones” scope of review for a court, limited to determining whether the EEOC has informed the employer of “what the employer has done and which employees (or what class of employees) have suffered as a result” and whether the EEOC has tried “to engage 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.”  The Supreme Court notes that a sworn affidavit from the EEOC that it has performed these obligations “will usually suffice to show it has met the conciliation requirement.”  The employer, however, may offer credible evidence (which may also be in the form of an affidavit) that the EEOC did not provide the required information in the notice or attempt to engage in a conciliation discussion.  If the employer offers such evidence, the reviewing court would then conduct a factfinding in order to resolve the dispute.  Should the court find that the EEOC did not meet its statutory obligations, the remedy would be to order the EEOC to comply with those obligations.

What This Means For Employers.  The apparently good news is that the Supreme Court has recognized that the EEOC’s conciliation obligation is subject to review, albeit a narrow one.  Thus employers are not completely without redress if the EEOC wholly fails to comply with its statutory obligation.  Realistically, however, the EEOC typically will take the minimal steps necessary to meet this obligation, and thus the practical impact on the relationship between an employer and the EEOC during the conciliation process may be negligible.