Supreme Court Reigns In EEOC’s Ability to Shirk Duty to Conciliate Prior to Filing Suit

Many of you employers out there have had the misfortune of receiving a “Charge of Discrimination” from the EEOC, alleging a violation of Title VII of the Civil Rights Act of 1964. The best outcome, of course, is that the EEOC makes a “no cause” determination after investigating and reading your position statement (and the claimant chooses not to file suit once the EEOC issues a “right to sue” letter).

What if, however, the EEOC finds that “reasonable cause” exists to believe that the employer engaged in an unlawful employment practice? Well, you think, at least the EEOC—prior to filing suit— must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” In other words, you’ve got a chance to reach a negotiated resolution that will avoid the time, expense and uncertainty of litigation. The conciliation process is also strictly confidential, so nothing you say can be used against you later. Cold comfort, perhaps, but some comfort nonetheless.

But now what if the EEOC doesn’t bother to actually attempt conciliation at all, as the employer alleged in Mach Mining, LLC v. Equal Employment Opportunity Commission, No. 13-1019? Instead, the EEOC simply sends two letters: one stating that a representative will “contact [employer] to begin the conciliation process,” then another one year later stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful,” followed by a lawsuit!

Naturally, you would contest the EEOC’s compliance with the conciliation requirement, and ask a court to review the EEOC’s conduct. Prior to Mach Mining, however, such an attempt would have failed, at least in the federal courts comprising the Seventh Circuit (Illinois, Wisconsin and Indiana). After the district court agreed with Mach Mining that it should review whether the EEOC made a “sincere and reasonable effort to negotiate,” the Seventh Circuit Court of Appeals reversed. They found, rather alarmingly, that the conciliation process is left “solely to the EEOC’s expert judgment,” such that no “workable standard” of review could be applied. In any event, the court concluded, the EEOC’s efforts in sending two letters were “facially sufficient” to show that conciliation had occurred.

Before you get too worked-up over this, rest assured, the Supreme Court reversed. Rejecting the notion that the EEOC is somehow above judicial review of a statutory directive (to conciliate), the Court, quite sensibly, looked at what the statute actually requires: “informal methods of conference, conciliation, and persuasion” in order to eliminate the alleged unlawful practice. Based on that language, the Court instructed the EEOC as to what it must do: “So the EEOC, to meet the statutory condition, 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.” Otherwise, the Court warned, “it has not satisfied Title VII’s requirement to attempt conciliation.”

Now, that may not be the “deep dive into the conciliation process” that Mach Mining sought—akin to assuring in the labor context that employers and unions actually bargain in “good faith” over the conditions terms of employment. But it still beats asking nothing more of the EEOC than some “facially sufficient showing” it attempted conciliation.

So employers, if you find yourself on the business end of a “reasonable cause determination,” you’ll want to make sure the EEOC actually engages you in a dialogue to informally resolve the allegedly unlawful practice prior to filing suit.

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Post by Mark Brookstein

Focusing on commercial litigation and employment law, Mark Brookstein enjoys a broad and diverse practice. In addition to litigating contract, real estate, business torts, employment and other commercial matters, Mark regularly counsels businesses on matters ranging from risk management and best practices to regulatory compliance and internal investigations.

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