Supreme Court Holds EEOC's Obligation to Conciliate Charges Is Subject to Very Narrow Judicial Review

Volume 14, Issue 8
April 29, 2015

Earlier today, in Mach Mining, Inc. v. EEOC, a unanimous U.S. Supreme Court held that a court may review whether or not the Equal Employment Opportunity Commission (EEOC) has satisfied its statutory obligation to attempt the conciliation of discrimination charges with an employer before bringing a court action under Title VII of the Civil Rights Act of 1964 (Title VII). Unfortunately, the Court found that the appropriate scope of such judicial review is narrow, enforcing only the EEOC's statutory obligation to give an employer notice and an opportunity to achieve voluntary compliance.

After investigating a gender-based failure-to-hire charge of discrimination against Mach Mining and finding reasonable cause existed to believe the company had engaged in unlawful hiring practices, the EEOC sent a letter inviting Mach Mining and the disgruntled applicant to participate in informal conciliation proceedings and notifying them that a representative would be contacting them to begin the process. About a year later, the EEOC sent Mach Mining another letter informing the company of its determination that conciliation efforts had been unsuccessful. Subsequently, the EEOC sued Mach Mining in federal court. In its answer, Mach Mining alleged that the EEOC had not attempted to conciliate in good faith before filing its lawsuit as required by Title VII. The EEOC maintained that its conciliation efforts were not subject to judicial review. The trial court disagreed, finding it had the ability to review whether the EEOC's conciliation efforts were sincere and reasonable. However, on an immediate appeal by the EEOC, the Seventh Circuit Court of Appeals ruled that the EEOC's "expert judgement" concerning its statutory conciliation obligations was unreviewable.

In its unanimous decision, authored by Justice Elena Kagen, the Supreme Court found that nothing in Title VII overcomes the "strong presumption favoring judicial review." Further, the Court determined the EEOC must do more than issue the two letters it mailed to Mach Mining. In order for the EEOC to comply with its statutory obligation to first try to resolve charges of discrimination by informal means of conciliation, the Court said the EEOC must: (1) inform the employer about the specific discrimination allegations, including describing what the employer has (allegedly) done and identifying which employees or class of employees suffered adverse action; and (2) try to engage the employer in a some form of discussion (written or oral) in order to give the employer a chance to remedy the allegedly discriminatory practices. To show it has met the statutory conciliation requirements, the Court ruled that the EEOC could provide a sworn affidavit stating it performed the same. Should an employer present "concrete evidence" that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, the Court said a trial court must conduct fact finding necessary to resolve the dispute. However, even if it is determined that the EEOC failed to meet its conciliation requirements, the only remedy for the employer is a stay of the case and a court order requiring the EEOC to undertake the mandated conciliation efforts before proceeding further.

While a win is a win, this is a relatively minor one for employers. Indeed, employers will find little to no solace in the Court's Mach Mining decision, particularly those who have been subjected to the EEOC's heavy-handed and unreasonable conciliation tactics.

If you have questions about this legal development, please do not hesitate to call the KZA attorney with whom you regularly work or call our office at (702) 259-8640.

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