Not So Fast: Supreme Court Holds that EEOC’s Conciliation Efforts are Reviewable

The case, Mach Mining v. Equal Employment Opportunity Commission, considered to what extent a federal court can review the EEOC’s mandatory conciliation procedures before the agency initiates a lawsuit. Reversing the U.S. Court of Appeals for the Seventh Circuit, the Court concluded that the reasonableness of the mandatory conciliation procedures are reviewable. The Court further explained what constitutes reasonable efforts by the EEOC to comport with the conciliation requirements.

Background Facts and Lower Court Decisions

A female employee at Mach Mining filed a charge with the EEOC claiming that Mach Mining had refused to hire her as a coal miner because of her sex. The EEOC investigated the allegation and found reason­able cause to believe that Mach Mining had discriminated against her, along with a class of other women who had applied for mining jobs.

The EEOC thereafter sent a letter inviting Mach Mining and the complainant to participate in informal conciliation proceed­ings, which are required by Title VII of the Civil Rights Act of 1964.  The letter also notified Mach Mining that a representative would be contacting them to begin the statutorily required conciliation process. The record did not disclose what happened next, but no conciliation meeting ever took place. About a year later, the EEOC 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 for sex discrimination.

In its Answer to the Complaint, Mach Mining alleged that the EEOC had not attempted to conciliate in good faith. The EEOC countered that its conciliation efforts were not sub­ject to judicial review and that, regardless, the two letters it sent to Mach Mining provided adequate proof that it had fulfilled its statuto­ry duty. The Southern District of Illinois agreed with Mach Mining that it could review the adequacy of the EEOC’s efforts, but granted the EEOC leave to file an interlocutory appeal on the issue.

The Seventh Circuit reversed, holding that that “the statutory directive to attempt concilia­tion” is “not subject to judicial review.” According to the Seventh Circuit, Title VII entrusts concilation “solely to the EEOC’s expert judgment” and thus provides no “workable standard” of review for courts to apply. The Seventh Circuit further reasoned that judicial review of the conciliation process would “undermine enforcement of Title VII” by “pro­tract[ing] and complicat[ing]” discrimination suits. Other Courts of Appeal, namely the Sixth and Eleventh Circuits, had ruled to the contrary – thus creating a Circuit split on the issue making it ripe for Supreme Court review.

The U.S. Supreme Court Decision

The Supreme Court reversed the Seventh Circuit, holding that courts indeed have the authority to review the reasonableness of the EEOC conciliation process.  The Court began by highlighting the “strong presumption” that Congress means to allow judicial review of administrative action and that this presumption is only rebuttable when a statute’s language or structure demonstrates that Congress intend­ed an agency to police itself. The Court explained that through the language in Title VII:

Congress imposed a mandatory duty on the EEOC to attempt conciliation and made that duty a precondition to filing a lawsuit. Such compulsory prerequisites are routinely en­forced by courts in Title VII litigation. And though Congress gave the EEOC wide latitude to choose which “informal methods” to use, it did not deprive courts of judicially manageable criteria by which to re­view the conciliation process. By its terms, the statutory obligation to attempt conciliation necessarily entails communication between the parties concerning the alleged unlawful employment practice. The statute therefore requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. In enforcing that statutory condition, a court applies a manageable standard.

After concluding that the EEOC is bound by the conciliation practice and that courts can review whether the EEOC participated in the process, the Court then turned to the scope of review by the lower courts. The Court explained that the scope of judicial review is narrow and that a court’s only role is to enforce the EEOC’s statutory obliga­tion to give the employer notice and an opportunity to achieve volun­tary compliance. The court concluded that this limited review comports with the expansive discretion that Title VII gives the EEOC while still ensuring that the EEOC follows the law.

The Court concluded by explaining what the EEOC must do in order to comport with Title VII, giving the agency a road map for future cases. The Court stated the EEOC must inform the employer about the specific discrimination al­legation through a notice, which describes what the employer has done and which employees or class of employees have suffered due to the employer’s actions. The EEOC must then try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. The Court stated that a sworn affidavit from the EEOC stating that it has per­formed these obligations would suffice to show that it has met the conciliation requirement in a lower court case reviewing the process. However, the burden would then shift to the employer who could present evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in discussion about the conciliation process. If the lower court found for the employer, the appropriate remedy would be for the EEOC to undertake the mandated conciliation efforts before proceeding with litigation.

Conclusion

The Mach Mining case is a modest victory for employers because it imposes a burden on the EEOC to engage in conciliation practices before it can proceed to federal court. In recent years, the EEOC has been filing more cases against employers, so this ruling will require the agency to take the conciliation process seriously.