June 3, 2015
By: Lauren W. Kavanagh, Esq.
For an employer, receiving a letter from the Equal Employment Opportunity Commission (“EEOC” or “Commission”) alleging a possible violation of Title VII can mean the beginning of an uncertain journey of expensive litigation. The statute, however, in theory offers employers a chance to informally and possibly settle the matter before a formal lawsuit is filed in court. After a finding of reasonable cause, Title VII explicitly states that the EEOC must first attempt “informal methods of conference, conciliation, and persuasion.” Circuit courts historically interpreted whether the EEOC’s efforts were subject to any judicial review in a variety of different ways. In a recent decision, Mach Mining, LLC v. E.E.O.C., 135 S. Ct. 1645 (2015) the Supreme Court conclusively held that the EEOC’s conciliation efforts under Title VII are subject to a narrow level of judicial review, while simultaneously giving the employer an opportunity to rebut the agency’s evidence of conciliation efforts.
In Mach Mining, a female job applicant filed a charge with the EEOC alleging that the company refused to hire her as a coal miner because of her gender. Id. at 1650. After an investigation, the Commission determined there was reasonable cause to believe the company had discriminated against the applicant and sent a letter to Mach Mining explaining that the conciliation process would begin soon. Id. A year later, the Commission sent Mach Mining a second letter stating conciliation efforts had been unsuccessful and that any further efforts would be futile. Id. After the Commission filed a lawsuit, Mach Mining argued that the EEOC had failed to conciliate in “good faith.” Id.
The trial court granted Mach Mining’s motion for summary judgment stating that at a minimum, it should review the Commission’s efforts to conciliate and determine whether they were sincere and reasonable. The Seventh Circuit, however, reversed and held that Title VII gave the EEOC essentially a blank check to determine whether its own efforts at conciliation efforts were reasonable. It found that courts had no “workable standard” of review under the statute. Id. at 1651.
The Supreme Court reversed the Seventh Circuit, holding that Title VII did not grant the EEOC unfettered discretion, and that the statute requires the agency to engage in conciliation efforts as a prerequisite to litigation. Id. at 1652. Yet, while the Court recognized that judicial review of EEOC conciliation efforts was appropriate, it simultaneously framed the scope of review as exceedingly narrow, being limited to whether the EEOC informed the employer about the specific allegation, including “what the employer has done and which employees (or what class of employees) have suffered as a result,” and whether the agency “tr[ied] 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.” Id. at 1656. The Court was firm that “[j]udicial review of those requirements (and nothing else) ensures that the Commission complies with the statute.” Id.
The Court also held, however, that the defendant may rebut the EEOC’s evidence of conciliation efforts. “If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.” Id.
This decision represents more of a win for the EEOC than employers in that it only requires the Commission to make a limited showing of its efforts of conciliation. However, it does provide employers with at least an opportunity to show that the Commission failed to engage in a good faith attempt to resolve the dispute before rushing to litigation. As such, lower courts reviewing the Commission’s efforts could force it to try to settle more of these cases as a result.