In a unanimous decision issued on April 29, 2015, the United States Supreme Court has unequivocally allowed judicial review of the Equal Employment Opportunity Commission’s (EEOC)’s pre-litigation conciliation efforts, but has articulated a rather limited scope of review. See MACH MINING, LLC v. Equal Employment Opportunity Commission, 575 U.S. ___ (2015). Like any good compromise, neither side got exactly what they wanted, but both parties were able to hail favorable points for their side.
The instant dispute arose when the EEOC investigated a sex discrimination charge against Mach Mining, LLC and determined that reasonable cause existed to believe that Mach Mining had engaged in unlawful employment practices. By law, before suing Mach Mining, the EEOC was required to “endeavor to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” In the situation at hand, however, the EEOC merely sent a letter inviting Mach Mining to participate in a conciliation process and informing them that an EEOC representative would contact them to initiate that process. However, no contact was made, and, a year later, the Commission sent Mach Mining another letter stating that it had determined that conciliation efforts had been unsuccessful. The EEOC then sued Mach Mining in federal court.
In its defense, Mach Mining asserted that the EEOC had not attempted to conciliate in good faith. The EEOC countered by arguing that its conciliation efforts were not subject to judicial review and that, regardless, the two letters it sent provided adequate proof that it had met its statutory duty.
The Supreme Court was definitive in holding that Title VII did not deprive courts of the authority to review the conciliation process. The court further elaborated that a conciliation process entails communication between the parties concerning the alleged unlawful employment practice. Consequently, the Court found that in order to comply, the EEOC was required to inform the employer about the specific discrimination allegations and that such notice should describe what the employer had done and which employees or class of employees had suffered consequences from the alleged unlawful employment practice. The Court also stated that the EEOC must, at least, try to engage the employer in a discussion in order to give the employer a chance to remedy the discriminatory practice.
However, in a nod to the EEOC, the Court stated that a sworn affidavit from the EEOC stating that it had performed these duties would suffice to show that it had met this conciliation requirement. If the employer presented concrete evidence that the EEOC did not provide the requisite information about the charge or endeavor to engage in a conciliation discussion, then the court could conduct a fact finding hearing necessary to resolve this limited dispute.
So what is the upshot of all of this? For employers, although the court’s decision will not likely result in lawsuits being dismissed, it will enable employers to argue the EEOC must provide a certain quantity and quality of information in the pre-litigation process. The EEOC cannot simply take an evasive stance prior to the filing of a lawsuit.
However, it is interesting to note that the number of lawsuits actually filed by the EEOC has dropped substantially in the last few years. In the past three fiscal years, that number has generally fallen below 150 lawsuits per year. In cases where the EEOC is determined to move forward with litigation, the threshold for meeting its conciliation duties is rather minimal. While the EEOC must provide some limited information at the pre-litigation process, there is no obligation to settle a case at the conciliation stage. So, while an employer may likely get a better quality of information at the conciliation stage, the prospect that a case will settle when the EEOC is determined to litigate that case remains highly unlikely.
The Employment Team at Sands Anderson is always available to assist you with employment claims at the conciliation stage or once litigation is filed.