On April 29, 2015, the U.S. Supreme Court decided the case of Mach Mining v. Equal Employment Opportunity Commission, unanimously holding that courts may review whether the Equal Employment Opportunity Commission (EEOC) has fulfilled its statutory duty to conciliate discrimination allegations. However, the power to review is narrow. A court may act as a factfinder only when presented with evidence that the EEOC: (1) did not provide sufficient information about a charge, or (2) did not attempt to engage in a discussion about conciliating the claim.
In Mach Mining, the EEOC investigated a sex discrimination charge against the employer. After the EEOC issued a “reasonable cause” determination that unlawful discrimination could have taken place, it issued a letter inviting the parties to engage in an informal conciliation process. The letter stated that a representative would contact the employer to begin the process. Mach Mining claimed that it did not hear anything until a year later, when the EEOC issued a determination letter that conciliation efforts “had failed” and then sued the company in federal court.
The employer defended the case on the basis that the EEOC had not made a good faith effort to conciliate as required by statute. The EEOC countered that: (1) the conciliation process was not subject to judicial review, and (2) the two letters it issued were sufficient to fulfill the organization’s statutory duty to conciliate. The United States District Court for the Southern District of Illinois agreed with the employer but the Seventh Circuit Court of Appeals reversed, holding that courts could not review the EEOC’s conciliation processes. Rather, Title VII left it solely to the EEOC’s “expert judgment”. The U.S. Supreme Court granted certiorari to address the question and to resolve the circuit split created by the Seventh Circuit’s decision.
The Court reviewed Title VII’s conciliation requirements finding that it mandates that the EEOC engage in informal discussions with the employer after issuing a finding of “reasonable cause”. However, Title VII grants significant discretion to the EEOC in determining whether the conciliation process has been successful, stating that the EEOC may file suit if it “has been unable to secure from the respondent a conciliation agreement acceptable to the Commission itself.”
Additionally, the Act requires conciliation discussions to be confidential: “Nothing said or done during and as part of such informal endeavors” may be publicized by the EEOC or “used as evidence in a subsequent proceeding without the written consent of the parties concerned.”
The EEOC first argued that this language requiring confidentiality prohibited courts from reviewing whether it had engaged in the conciliation process at all. The Court said, however, that, absent express statutory language, there is a strong presumption to allow for judicial review of administrative actions. Further, the Court continued, Title VII made conciliation a mandatory prerequisite to filing a lawsuit, and required at a minimum that the EEOC tell the employer about the claims and provide an opportunity for voluntary compliance. The Court compared this language to the Title VII requirement that a plaintiff must exhaust administrative remedies before filing a suit and noted that if the EEOC did not conciliate, then it had not satisfied its statutory prerequisite. Nothing in Title VII, the Court concluded, prevented the judiciary from reviewing whether this requirement had been satisfied. Thus, courts are permitted to review whether the EEOC engaged in conciliation.
Next, the EEOC argued that such a legal review in this case should be limited to the facial validity of the two letters it sent to the employer. Mach Mining argued that the review process should be much more detailed. The Court declined to adopt either party’s proposed approach. Instead, it will require evidence that: (1) the EEOC informed the employer about the specific allegation and which employees (or what class of employees) have suffered as a result of the allegation; and (2) the EEOC tried “to engage the employer” in oral or written communication to give it a chance to remedy the alleged discriminatory practice. A reviewing court may evaluate whether the EEOC attempted to confer about a charge, not what happened during the negotiations, thus preserving the confidentiality of the process.
Based upon this decision, Employers should have a better opportunity to attempt resolution of EEOC cases before having to incur litigation costs. Also, this decision now establishes conciliation as a mandatory administrative step for the EEOC prior to instituting litigation, much the same way that plaintiffs must file an administrative charge with the EEOC before they may proceed to court on their own.
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