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May 2015

The EEOC’s Conciliation Efforts are Judicially Reviewable

The Supreme Court issued a ruling on April 29, 2015, regarding whether the EEOC’s conciliation efforts are judicially reviewable in Mach Mining, LLC v. EEOC. The history of the case started when a woman filed a charge of discrimination with the EEOC, alleging that Mach Mining denied her a job because of her gender.

The EEOC determined that there was reasonable cause to believe Mach Mining had discriminated against female applicants and initiated the conciliation process. The Commission sent a letter inviting Mach Mining and the Complainant to participate in informal conciliation proceedings and notified them that a representative would be contacting them to begin the process. About a year later, the Commission sent Mach Mining another letter stating that it had determined that conciliation efforts had been unsuccessful.

The EEOC sued in federal court. In its answer, Mach Mining alleged that the Commission had not attempted to conciliate in good faith. The Commission countered that its conciliation efforts were not subject to judicial review and that, regardless, the two letters it sent to Mach Mining provided adequate proof that it had fulfilled its statutory duty.

The District Court held that it could review the adequacy of the Commission’s efforts, but granted the Commission leave to immediately appeal.

The U.S. Court of Appeals for the Seventh Circuit reversed, holding that the Commission’s statutory conciliation obligation was unreviewable. The appellate court held that as long as the EEOC has pleaded that it complied with Title VII and the relevant documents are facially sufficient, judicial review is satisfied. The appellate court noted that Title VII gives the EEOC complete discretion to accept or reject settlement offers during informal conciliation and provides no standard to evaluate the failure-to-conciliate affirmative defense. Therefore, the appellate court reasoned that allowing an employer to use “failure-to-conciliate” as an affirmative defense would protract and complicate employment discrimination cases.

The case was appealed to the Supreme Court, which held that while judicial review is available to ensure that the EEOC fulfills its statutory obligation to attempt conciliation before suing, the scope of such review must be narrow in recognition of the EEOC’s extensive discretion. This review “looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.” The Court noted that a sworn affidavit from the EEOC that the proper conciliation efforts occurred “will usually suffice,” but that if an employer provides competing evidence indicating that “the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decided that limited dispute.” The Court held that judicial review is only inappropriate when Congress has explicitly stated in statute that an agency is permitted to police itself. While Congress granted the EEOC broad latitude on when to begin and end conciliation, there is no indication Congress intended to make the EEOC immune to judicial review. The Court reasoned that the scope of such review must be limited to what Title VII requires of the EEOC: that the EEOC provide the employer with notice of the specific allegation and allow the employer the opportunity to remedy the allegedly discriminatory practice.

The opinion can be read here.

Employment Law

Employment Law