Supreme Court Clarifies EEOC Conciliation Process

A growing concern of late among employers has been the often heavy-handed tactics of the EEOC with respect to its statutory obligations to pursue pre-suit conciliation processes.  Though the EEOC is required by Title VII of the Civil Rights Act of 1964 to attempt settlement negotiations between an employer and the allegedly wronged employee prior to suing for a judicial intervention, many employers felt that the EEOC has been overly aggressive with its pre-suit tactics.  The end result for these employers has been a rise in avoidable, costly, and occasionally reputation-damaging litigation.

Prior to April 29, 2015, there was a split among the Circuit Courts as to whether the courts had the authority to review the adequacy of the pre-suit efforts made at conciliation by the EEOC.  However, the U.S. Supreme Court recently ruled that courts do have the authority to review whether the EEOC has fulfilled its statutory obligations to pursue pre-suit conciliation.  The decision by the Supreme Court clarifies the measures by which the EEOC may be reviewed, and strikes a balance between the broad discretion enjoyed by the EEOC and an employer’s rights to understand the allegations at issue and to be allowed the opportunity to resolve these allegations without being dragged through costly litigation.

The unanimous Supreme Court decision vacated a ruling of the U.S. Court of Appeals for the Seventh Circuit, which held that the EEOC’s statutory conciliation obligation was unreviewable. The subject case, Mach Mining, LLC v. Equal Employment Opportunity Commission, was brought following an EEOC complaint filed by a woman who claimed that Mach Mining, LLC denied her employment as a coal miner based upon her sex. The EEOC found that there was reasonable cause to believe that Mach Mining discriminated against the claimant and invited the applicant and Mach Mining to participate in “informal methods” of dispute resolution.  Both parties were told that an EEOC representative would “contact [them] to begin the conciliation process.” A year later, Mach Mining received a letter from the EEOC which stated that the conciliation efforts “have been unsuccessful” and that therefore any further attempts to resolve the dispute would be “futile.” Thereafter, the EEOC filed a lawsuit in federal district court alleging discrimination based upon Mach Mining’s failure to hire the female applicant.

The EEOC Complaint asserted that the EEOC fulfilled its obligation to conciliate, while Mach Mining countered that the EEOC had failed to conciliate in “good faith” prior to initiating litigation. The EEOC moved for summary judgment, arguing that the court could not review its conciliation efforts. Mach Mining argued that the court had the authority to review the “reasonable[ness]” of the EEOC’s efforts to resolve the matter. The district court agreed with Mach Mining, but authorized an immediate appeal of its ruling upon request by the EEOC. The Seventh Circuit then reversed the district court’s decision, and ruled that “the statutory directive to attempt conciliation” is “not subject to judicial review.”

The EEOC argued to the Supreme Court that Title VII provides the EEOC with significant leeway in performing conciliation, and in making the determination as to when conciliation would be futile. The EEOC maintained that Congress never articulated any “judicially manageable” criteria upon which conciliation efforts could be reviewed. The Supreme Court disagreed, and in a unanimous decision authored by Justice Elena Kagan, held that “the statute provides certain concrete standards pertaining to what the endeavor must entail.” Yesterday’s decision clarifies the EEOC’s obligations requiring that in order to meet the statutory prerequisite, the EEOC “must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” However, the Supreme Court also held that the judicial review of conciliation was warranted only on a limited basis, and noted that the scope of review was “narrow,” and would therefore recognize “the EEOC’s extensive discretion to determine the kind and amount of communication” appropriate in any case.

While a subtle and nuanced decision, the Supreme Court’s ruling helps clarify the rights and responsibilities of both the EEOC and the employers, and should allow for more just and fair procedures with respect to the complaints filed with the EEOC.

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