In a unanimous decision, the Supreme Court said that conciliation efforts by the Equal Employment Opportunity Commission are subject to limited judicial review. Justice Kagan authored the decision in Mach Mining, LLC v. EEOC, which resolved a circuit spilt over: (1) whether judicial review of EEOC conciliation efforts was permitted and (2) if so, the scope of this judicial review. This post will briefly summarize the background of the case, examine the Court’s analysis and conclusions, and then offer some employer takeaways.
Title VII of the Civil Rights Act of 1964 provides that before the EEOC can sue an employer for unlawful employment practices, it must notify the employer of a complaint by an individual and conduct an investigation into the validity of the complaint. See 42 U.S.C. § 2000e-5(b). If this investigation finds reasonable cause supporting the allegations underlying a complaint, then the EEOC must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” Id. The central issue in Mach Mining considered this conciliation process.
There, a female applicant to March Mining filed a charge with the EEOC, alleging that the company engaged in sex discrimination when it refused to hire her. The EEOC found reasonable cause to believe that Mach Mining had engaged in sex discrimination and sent a letter inviting it to participate in conciliation efforts with the charging party. A year after sending this letter, the EEOC sent a second letter to Mach Mining stating that conciliation efforts failed and the EEOC sued.
The Company said in its answer to the complaint that the claim should be dismissed because the EEOC had not attempted to conciliate the dispute, as mandated by the statute. The EEOC asked the district court to throw out that defense because its conciliation efforts were not subject to judicial review and that in any case, the two letters it sent satisfied its statutory obligations. The issue eventually made its way to the Supreme Court.
The Supreme Court Says That Courts Can Review the EEOC’s Conciliation Efforts
The Supreme Court first reasoned that the EEOC’s duty to conciliate is a mandatory element of the statutory scheme set forth in Title VII and a prerequisite to the EEOC filing suit. The Court furthered stated that there is a “strong presumption favoring judicial review of administrative actions” and that nothing in Title VII overcomes this presumption. Indeed, the Court explained, courts “routinely enforce” other compulsory prerequisites in Title VII litigation, such as the requirement that employees obtain a right-to-sue letter before filing suit against employers. Accordingly, the Court held that the EEOC’s conciliation efforts are subject to judicial review.
The Supreme Court Limits a Court’s Scope of Review
The Court next analyzed the scope of this judicial review. The Court rejected both the EEOC’s minimalist, check-the-box review and the Company’s proposal that courts should “do a deep dive into the conciliation process.” Instead, the Court decided upon a middle ground, which it characterized as a “relatively barebones review.” This review examines (1) whether the EEOC has notified the employer about the specific allegation of discrimination and (2) whether the EEOC “tried 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 explained that a sworn affidavit by the EEOC attesting that it has abided by its statutory obligations but the conciliation failed, “will usually suffice to show that it has met the conciliation requirement.” However, if the employer can rebut this affidavit with credible evidence, “a court must conduct the fact-finding necessary to decide the limited dispute.”
- The EEOC must provide something more than mere notification of a probable cause decision and invite conciliation. Instead, the EEOC must provide the employer with notice of the specific allegations that allowed it to reach a probable cause decision so that the employer can make an informed decision about whether to settle the charge.
- While the EEOC’s burden is higher than a procedural rubber stamp, the agency still has broad discretion to decide what conciliation efforts are appropriate in a given matter and more importantly, when to cut off conciliation efforts and proceed with litigation.
- Thus, the scope of Mach Mining is modest as the Court failed to endorse more stringent conciliation requirements. Accordingly, though employers may continue to include failure to conciliate as an affirmative defense in answering EEOC complaints, the effectiveness of such a defense may be limited in the future to instances where the EEOC failed to conciliate at all or failed to provide employers a realistic opportunity to remedy wrongful practices.