United States: United States Supreme Court Approves Limited Review Of EEOC's Conciliation Efforts

On April 29, 2015, the United States Supreme Court ruled that courts have limited authority to review whether the Equal Employment Opportunity Commission ("EEOC") has satisfied its obligation to attempt to conciliate matters prior to filing a lawsuit.

The EEOC is tasked with enforcing federal anti-discrimination laws including Title VII of the Civil Rights Act of 1964 ("Title VII"). Prior to bringing a lawsuit in court, an aggrieved employee must first file an administrative charge with the EEOC. If, following an investigation, the EEOC finds "no reasonable cause" to believe that the charge has merit, it may dismiss the charge. The aggrieved employee then has a right to file a lawsuit on his or her own behalf. If, however, the EEOC does find reasonable cause to support the charge, under Title VII the EEOC may bring a lawsuit of its own against the employer, but first it must "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Only after the EEOC "has been unable to secure . . . [a satisfactory] . . .conciliation agreement" may the EEOC file a lawsuit against the employer.

Federal courts have disagreed as to whether they have authority to review the adequacy of the EEOC's conciliation efforts in a given case. In Mach Mining, LLC v. Equal Employment Opportunity Commission, the Supreme Court had an opportunity to settle the split among lower courts. In that case, a job applicant filed a charge with the EEOC alleging that Mach Mining, LLC ("Mach Mining") discriminated against her on the basis of her sex by refusing to hire her as a coal miner. The EEOC found "reasonable cause" to support the charge, and eventually filed a lawsuit against Mach Mining alleging sex discrimination in hiring.

In its answer to the lawsuit, Mach Mining asserted that the EEOC had failed to conciliate in good faith prior to filing the lawsuit. The EEOC filed a motion to strike that defense, arguing that conciliation efforts were not subject to review by the court. The trial court denied the motion, finding that it did have authority to review whether the EEOC had made a "sincere and reasonable effort to negotiate."

The case made its way to the Supreme Court, and in a unanimous decision, the Supreme Court found that although the EEOC has "wide latitude" in handling the conciliation process, that process is not immune from judicial review. Rather, engaging in conciliation efforts is a mandatory pre-requisite to filing suit, and courts may insist that the EEOC fulfills this obligation.

The Supreme Court approved only a narrow standard of review, however, holding that the EEOC must only inform the employer about the specific allegation, and "try to engage the employer in some form of discussion . . . so as to give the employer an opportunity to remedy the allegedly discriminatory practice." The Supreme Court thus held that the appropriate standard of review is simply that courts must ensure that the EEOC followed this process. A court cannot assess what happened during conciliation, but instead only whether the EEOC attempted conciliation.

The Supreme Court also determined that if an employer can successfully demonstrate that the EEOC did not fulfill its obligations, the appropriate remedy is to stay the lawsuit so that the EEOC could undertake the mandatory efforts to conciliate. Thus, employers cannot seek dismissal of a lawsuit based on the EEOC's failure to conciliate.

The EEOC is required to conciliate before bringing a lawsuit against an employer. Following the Mach Mining decision, employers may now hold the EEOC accountable for a failure to do so. The Mach Mining decision's usefulness is somewhat limited, however, as it only permits employers to challenge the EEOC when it fails to conciliate but not if the conciliation efforts themselves are poor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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