Caroline Candidate filed a Title VII sex discrimination charge with the Equal Employment Opportunity Commission against your company, Marvelous Manufacturing, because it didn’t hire her. You respond to the charge, confident it will be dismissed. Instead, the EEOC issues a determination of reasonable cause to believe your company discriminated against the Charging Party — “and a class of female applicants because of their sex”, based on “the evidence obtained during the course of the investigation”. What is the evidence? Aside from the Charging Party, who else allegedly suffered discrimination by your company? How big is this class of female applicants and what geographic area is involved? You ask the EEOC. It responds by presenting you with a conciliation (settlement) demand. You ask again and you get a notification that conciliation failed and a lawsuit a few days later. Does this scenario sound far-fetched? These are essentially the allegations in Mach Mining v. EEOC, another case pending before the U.S. Supreme Court this term. Join The Emplawyerologist after the jump to learn more…
First, here’s a thumbnail sketch of the process involved in EEOC charges. The employee, or Charging Party, file a charge. The EEOC must then investigate. It will ask for a position statement from you. and possibly other information, such as personnel policies or other documents relating to the charging party or other information it feels may be relevant. Once it finishes its investigation, the EEOC will either dismiss the charge or issue a Letter of Determination and invite all parties to join it in resolving the matter through an informal process, known as conciliation.Title VII of the Civil Rights Act of 1964 requires the EEOC to take these steps before it can sue.
Mach Mining in its Answer to the EEOC’s Complaint argued that the EEOC filed to fulfill its statutory obligation to conciliate in good faith. The EEOC moved for partial summary judgment (basically to dismiss Mach Mining’s defense), arguing that “the conciliation process is not subject to judicial review”. There lies the issue of this case: May a court enforce the EEOC’s mandatory obligation under Title VII to conciliate a charge before filing suit, and if so, to what extent?
The US District Court answered this question in the affirmative, noting that all the federal appellate circuits “that have weighed in on the matter agree that conciliation is subject to at least some level of review.” The court did not find it necessary to rule on the sufficiency of the EEOC’s efforts, because the EEOC opted not to argue that its efforts would satisfy either the ‘deferential standard’ or the ‘heightened scrutiny’ standard applied by the different circuits. It did effectively rule that Mach Mining could assert failure to conciliate as a defense, however. On appeal, the 7th Circuit reversed. It acknowledged that every circuit that has addressed the question has held found compliance with this precondition to litigation judicially enforceable. It then became the first circuit to reject that principle, creating a split among the circuits, and a genuine question of law. Sounds like a job for the nine US Supreme Court justices!
The EEOC essentially argues that:
- Congress left it exclusively to the EEOC “to decide which informal methods of conference, conciliation and persuasion would be appropriate”.
- Settlements achieved by conciliation are confidential and cannot be made public.
- Conciliation is inherently ” incompatible with judicial review”, which would undermine the effective enforcement of Title VII.
- Employers could exploit judicial review of conciliation efforts for litigation advantage.
- Under basic principles of administrative law only final agency actions are subject to judicial review. Since conciliation failure is not a final agency action, it is subject only to the EEOC’s discretion.
- Judicial review is unnecessary because the EEOC has “powerful incentives” to negotiate in good faith and “has a long history of doing so”.
Mach Mining’s arguments, in a nutshell, are as follows:
- While Title VII does not expressly state that the conciliation requirement is judicially enforceable, it does not expressly provide that noncompliance with any of its litigation preconditions are, and yet the US Supreme Court has held them to be judicially enforceable. Conciliation, like the other litigation preconditions is therefore judicially enforceable.
- The EEOC’s discretion to decide whether a particular conciliation agreement is acceptable does not preclude judicial review of whether it engaged in a process recognizable as conciliation. For example, a court need not second-guess the EEOC’s substantive determinations about an acceptable conciliation to rule that the EEOC must give an employer enough time and information to consider a proposal and may not conciliate one individual claim and then file a class action suit with differing allegations.
- Congress did not enact confidentiality provisions to preclude judicial review of conciliation. Relevant information can be filed under seal to prevent public dissemination of confidential information.
- Confidentiality provisions preclude use of conciliation information to disprove the merits of a discrimination claim (which the EEOC itself has argued in other cases) not whether the EEOC engaged in good faith efforts to fulfill this requirement.
- Employers have substantial financial and public relations interests in resolving even arguably non-meritorious discrimination claims in the confidential context of conciliation before commencement of a lawsuit or issuance of a press release. Judicial review is unlikely to change that.
What does this all mean? A ruling in favor of the EEOC could mean, at least in theory that it can interpret the preconditions to filing a lawsuit in whatever way it sees fit and that its actions could go unchecked. Employers who feel that the EEOC is not acting in good faith would have no recourse. Mach Mining cites part of Title VII’s legislative history to prove that was not Congress’ intent. On the other hand, judicial review of conciliation efforts without appropriate limits, could result in parties not being as candid during conciliation if information might not be confidential. On the other hand (I know that’s now up to three hands) can’t the court set some appropriate boundaries? Will it? How much work will it be willing to do in this case? Well, it did agree to hear the case. No date for oral argument has been set, so we’ll just have to wait and see–and talk about it when the decision comes!
In the meantime, next week let’s look at another pending Supreme Court case, regarding collective bargaining agreements, health benefits and retirees (oh my?). ‘Til then…
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
“Like” The Emplawyerologist on Facebook, by clicking here.
Want to really be up to date on hot button topics impacting employers? E-mail firstname.lastname@example.org for a monthly subscription to Emplawyerology Alerts!
Want to be a guest blogger? Email me at email@example.com.