SCOTUS Addresses EEOC’s Conciliation Obligation in Mach Mining, LLC v. Equal Employment Opportunity Commission
On April 29, 2015, the Supreme Court issued a decision in Mach Mining, LLC v. Equal Employment Opportunity Commission that addressed a disagreement among the Circuit Courts on whether employers have grounds for challenging the adequacy of the EEOC’s efforts to resolve allegedly discriminatory practices through informal means before resorting to litigation. In some cases, courts have dismissed litigation because of the EEOC’s failure to first explore conciliation, whereas the EEOC has taken the position that the scope of its conciliatory efforts is entirely discretionary. Justice Kagan, examining both the availability and scope of judicial review of the EEOC’s conciliation efforts, wrote for the unanimous court that, in terms of review, “Congress has not left everything” to the EEOC. However, the actual scope of judicial review is strictly limited, as discussed below, and employers may still find themselves without recourse on this issue in response to all but the most perfunctory conciliation efforts.
Under 42 U.S.C. § 2000e-5(b), if the EEOC finds reasonable cause to believe that an allegation of employment discrimination or retaliation has merit, it must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion”. If the EEOC is “unable to secure from the respondent a conciliation agreement acceptable to the Commission”, only then may the EEOC bring suit. 42 U.S.C. § 2000e-5(f)(1).
In the case under review, a female applicant filed a charge with the EEOC claiming Mach Mining did not hire her for a coal mining position because of her sex. The EEOC found reasonable cause to believe Mach Mining had discriminated against the complainant, as well as a class of women who had also applied for mining jobs. In a letter announcing its determination, the EEOC invited both parties to participate in dispute resolution and stated that an EEOC representative would soon contact the parties to begin the conciliation process. The Supreme Court noted that the record is silent on what happened next, but approximately one year later, the EEOC sent Mach Mining a letter saying conciliation had “occurred”, had been “unsuccessful”, and that “any further efforts would be futile”.
The EEOC then sued Mach Mining alleging sex discrimination. Mach Mining disputed the EEOC’s contention that its conciliation obligations “ha[d] been fulfilled”, saying that the EEOC had failed to conciliate in good faith and that the district court should consider the overall reasonableness of the EEOC’s efforts. The EEOC countered that its “conciliation efforts are not subject to judicial review” and that, at most, the court could inspect the two letters it sent to Mach Mining to confirm that the EEOC satisfied the requirement of attempting conciliation. The district court agreed with Mach Mining and granted an immediate appeal at the EEOC’s request. The Seventh Circuit reversed.
In its review of the Seventh Circuit’s decision, the Supreme Court began by noting the “strong presumption” of judicial review of administrative action. Although this presumption is rebuttable when the statute’s language or structure establishes that Congress wants an agency to police its own behavior, the EEOC has a “heavy burden” to demonstrate Congress prohibited all judicial review. The Court did agree with the agency that the statute gives “wide latitude” to the EEOC over conciliation, but also observed that the statute describes “certain concrete standards” of “conference, conciliation, and persuasion”. Citing the dictionary definitions of these terms, the Court noted that these words contemplate consultation or discussion, an attempt to reconcile different positions, and a means of argument, reasoning, or entreaty.
Thus, the Court found that the EEOC “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.” If the EEOC fails to do so, then it has not satisfied the conciliation requirement of Title VII. The EEOC must “communicate in some way (through ‘conference, conciliation, and persuasion’) about an ‘alleged unlawful employment practice’ in an ‘endeavor’ to achieve an employer’s voluntary compliance.” The typical letter regarding “reasonable cause” appropriately details both the employer’s actions at issue and which employees are affected thereby. The EEOC must then try to engage the employer in a discussion (written or oral) to provide the employer with an opportunity to remedy the alleged discriminatory practices.
The Court then considered the appropriate scope of judicial review. After rejecting both the view of the Government (a cursory examination, under which the EEOC’s two letters were sufficient) and Mach Mining (an intrusive review into the agency’s actual conciliatory efforts), the Court decided that the appropriate scope of review should assess whether the EEOC afforded the employer a chance to discuss and rectify a specified discriminatory practice, but go no further. Under this standard, the two letters produced by the EEOC here fell short of what would be acceptable. On the other hand, the EEOC must only “endeavor” to conciliate, which does not require a specific amount of time or resources or for the EEOC to take any specific steps or measures. Indeed, the Court found that it would extend judicial review too far for the Court to assess such factors as the pace and duration of conciliation, the flexibility or firmness of negotiating positions, and the content of the EEOC’s demands.
Generally, a sworn affidavit from the EEOC that it is has performed its obligations but its energies have failed will be sufficient to satisfy the conciliation requirement. However, if the employer provides credible evidence (such as an affidavit) that EEOC did not provide the required information or did not attempt to engage in a conciliation discussion, the Court must conduct a fact-finding hearing to answer that question. Assuming the Court does find a violation, the appropriate remedy is to order the EEOC to engage in conciliation.
Although this opinion provides a layer of judicial oversight of the EEOC’s conciliation efforts, employers should remember that this oversight is still circumscribed. Moreover, future litigation will help to flesh out the level of detail courts will require from employers to establish “credible evidence” that the EEOC did not appropriately engage in conciliation.