In what is viewed as a partial victory for employers facing Equal Employment Opportunity Commission (“EEOC”) charges, the U.S. Supreme Court ruled today that courts may conduct limited review of the EEOC’s mandatory conciliation efforts prior to filing suit. Then, if a court finds that the EEOC did not engage in the legally-required conciliatory efforts, the lawsuit may be stayed until conciliation has occurred. Unfortunately, the Supreme Court did not give employers the big win that had been hoped for, namely a ruling that requires dismissal of a lawsuit if the EEOC refused to conciliate.
Mandatory Conciliation Efforts under Title VII
Title VII of the Civil Rights Act of 1964 sets out a detailed procedure through which the EEOC enforces the statute’s ban on employment discrimination. The law first requires all potential plaintiffs to file a Charge of Discrimination with the EEOC. If the EEOC finds merit to the Charge, EEOC then “shall endeavor to eliminate” the alleged unlawful employment practices by “informal methods of conference, conciliation, and persuasion” before filing suit.
EEOC’s Case against Mach Mining
In Mach Mining, LLC v. EEOC, No. 13-1019 (April 29, 2015), the EEOC had found reasonable cause to believe the company had discriminated against the woman whose complaint triggered the case, as well as a class of women who had also unsuccessfully applied for mining-related jobs.
The EEOC sent the employer two letters: (1) one letter notified Mach Mining of its intention to begin informal conciliation and (2) the second letter, sent about a year later, notified Mach Mining that it had determined that the conciliation process had failed.
After the EEOC filed suit, Mach Mining asserted its defense that the EEOC had failed to conciliate in good faith. The district court denied the EEOC’s motion to dismiss, the Seventh Circuit Court of Appeals reversed, holding that courts had no legal basis for reviewing the EEOC’s conciliation efforts.
Supreme Court’s Decision
Writing for a unanimous Court, Justice Elena Kagan first declared that the EEOC’s conciliation efforts are subject to judicial review – albeit limited review. Specifically, in order to comply with Title VII’s conciliation requirements, the EEOC must complete two tasks:
- First, “the EEOC must inform the employer about the specific allegation” and “describe[] both what the employer has done and which employees (or what class of employees) have suffered as a result.”
- Second, “the EEOC must try 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 Court decided that the EEOC can satisfy this obligation by submitting a sworn affidavit stating that these requirements have been met. Then, only if the employer presents “credible evidence” that the EEOC did not engage in these efforts, will the court engage in fact finding in order to determine whether the conciliation efforts were properly undertaken.
If the EEOC fails to engage in the required conciliatory efforts, the Supreme Court ruled that a Title VII lawsuit should only be stayed until the EEOC complies, but should not be dismissed altogether.
Bottom Line
While the Supreme Court’s decision in Mach Mining ensures that the EEOC and its agents will engage in at least some conciliation efforts prior to bringing suit, this decision is disappointing to employers because the Court declined to authorize dismissal of the EEOC’s lawsuits if conciliation efforts were not undertaken. Still, the next time you receive an EEOC charge, pay careful attention to whether the EEOC has complied with the conciliation obligations outlined above.