EEOC’s Conciliation Efforts Subject to Review

Under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) has an obligation to investigate charges of discrimination or retaliation in the workplace. If the EEOC finds “reasonable cause” to believe that discrimination or retaliation has occurred, Title VII requires the agency to “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Only after the EEOC determines that conciliation has failed may it file a lawsuit in federal court.

In a unanimous decision, the U.S. Supreme Court recently held that courts have the authority to review whether the EEOC has satisfied its conciliation obligation. However, the Court failed to extend the scope of a court’s authority beyond a narrow “relatively barebones review.”

Procedural Background

The case started with a woman filing a discrimination charge in which she alleged that Mach Mining discriminated against her by refusing to hire her as a coal miner because of her sex. The EEOC investigated and determined there was reasonable cause to believe that the company had discriminated against the woman as well as a class of female applicants who had applied for mining jobs. The commission sent a letter to the woman and Mach Mining announcing its determination and inviting them to participate in “informal methods” of dispute resolution, promising that an EEOC representative would “contact [them] to begin the conciliation process.”

About a year later, the EEOC sent a second letter to Mach Mining stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful” and that any further efforts would be “futile.” It was unclear from the court record what, if anything, occurred between the first and second letters.

The EEOC filed suit in federal district court two weeks after it sent the second letter. Its complaint, alleging sex discrimination in hiring, stated that all conditions precedent to instituting the lawsuit, including an attempt to end the challenged practice through conciliation, had been fulfilled. In its answer, Mach Mining denied committing unlawful discrimination and asserted a number of defenses, one of which was that the EEOC had failed to conciliate in good faith before filing suit.

The EEOC requested summary judgment (pretrial dismissal) on Mach Mining’s failure to conciliate defense, contending that courts should look no further than the face of the discrimination complaint to review the sufficiency of the agency’s conciliation process and asking the court to determine whether an alleged failure to conciliate is an affirmative defense to an unlawful discrimination complaint. The district court denied the agency’s motion, agreeing with Mach Mining that it should review whether the commission had made a sincere and reasonable effort to negotiate before filing a lawsuit.

On an appeal initiated by the district court, the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) disagreed, determining that Title VII’s statutory directive that the EEOC attempt conciliation is not subject to judicial review and that an alleged failure to conciliate is not a defense to the merits of a discrimination lawsuit. Other courts of appeals have held otherwise, finding that Title VII allows judicial review of the EEOC’s conciliation efforts, albeit without any agreement about what the review may entail.

The U.S. Supreme Court agreed to hear the case to decide whether courts may review efforts by the EEOC to engage in informal methods of conciliation and, if so, to what extent an attempt to conciliate is subject to judicial consideration.

Judicial Review Authorized

The Court began by noting that Congress rarely intends to prevent courts from enforcing its directives to federal agencies. The Court applied a “strong presumption” favoring judicial review of administrative action, stating that the presumption is rebuttable only if the statute’s language or structure demonstrates that Congress wanted an agency to police its own conduct. The Court found no such language in Title VII, which instead imposes a mandatory duty on the EEOC to attempt to conciliate and makes that duty a precondition to filing a lawsuit. The Court explained that courts routinely enforce such compulsory prerequisites to filing suit.

Opposing judicial review, the EEOC argued that Title VII does not contain any standards by which to judge its performance of its statutory duty but provides it with broad leeway to decide how to engage in and when to give up on conciliation. By allowing it that discretion, the EEOC argued, Congress deprived courts of any judicially manageable criteria with which to review its efforts.

The Court disagreed, stating that Congress did not leave everything to the EEOC and finding instead that the statutory obligation to attempt conciliation, by its terms, necessarily entails communication between the parties and requires that the EEOC:

• Tell the employer about the claim—essentially, which practice has harmed the person or class; and
• Provide the employer with an opportunity to discuss the matter, in writing or orally, in an effort to achieve voluntary compliance.

Scope of Review is Narrow

The Court next answered the question of the proper scope of judicial review of the EEOC’s conciliation activities, addressing the agency’s proposal for a minimalist form of review and Mach Mining’s proposal for a more intrusive review.

The EEOC proposed that courts rely solely on a facial examination of certain documents like the two letters it sent to Mach Mining—the first announcing that the conciliation process would start and the second stating that it had concluded. Mach Mining argued for a review similar to the review applied to bargaining between employers and unions under the National Labor Relations Act (NLRA), which would require courts to determine whether the EEOC had “negotiated in good faith.” The Court rejected both approaches, determining the appropriate scope of review was limited to making sure that the EEOC affords employers a chance to discuss and rectify specific discriminatory practices.

The Court reasoned that a limited review respects the expansive discretion over the conciliation process that Title VII gives the EEOC while still ensuring that the agency follows the law. The Court emphasized the flexibility incorporated in Title VII’s conciliation provisions, which require only that the EEOC endeavor to conciliate a claim, without any mandates that it devote a certain amount of time or resources to its efforts or take any specific steps or measures. The statute grants the commission the ability to use whatever “informal” means of “conference, conciliation, and persuasion” it deems appropriate, and in the end, it also gives the EEOC the right to sue whenever it is “unable to secure” terms “acceptable to the Commission.”

The Court reasoned that subscribing to Mach Mining’s proposed brand of review would conflict with the latitude given to the EEOC under Title VII. It would also conflict with Title VII’s protection of the confidentiality of conciliation efforts, which provides that nothing said or done during and as part of informal conciliation endeavors may be made public by the commission or used as evidence in a subsequent proceeding without the written consent of the employer and the complaining employee.

The Court concluded that judicial review limited to two requirements (whether the EEOC told the employer about the charge and whether it gave the employer an opportunity to discuss the matter in an effort to achieve voluntary compliance) ensures that the agency complies with Title VII and allows it to exercise its expansive discretion under the statute to decide how to conduct conciliation efforts and when to end them. Such a review is also consistent with Title VII’s nondisclosure provision because it allows a court to look only to whether the EEOC attempted to confer about a charge and not to what happened during the discussions.

The Court concluded that a sworn affidavit from the EEOC stating it has performed its conciliation obligations but its efforts have been unsuccessful will typically suffice to show that it has met the conciliation requirement. An employer’s recourse, according to the Court, is to provide 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. In that case, a court must conduct the fact-finding necessary to decide that limited dispute. If the court finds in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance. Mach Mining, LLC v. EEOC, No. 13-1019 (April 29, 2015).

Bottom Line

While the Supreme Court’s decision allows for more judicial oversight of the EEOC’s conciliation efforts than what was previously afforded by the 7th Circuit, some would say the decision falls short of any meaningful method to police the agency’s conciliation efforts or pressure it to be reasonable in its demands. The decision puts considerable discretion in the EEOC’s hands and leaves employers with little to challenge.

Nevertheless, employers should be sure to push the EEOC to provide, at a minimum, the type of information required to satisfy its conciliation obligation, including identifying the practices that are the subject of the discrimination claim and the persons allegedly harmed by those practices. Employers and their attorneys should document all contact with the EEOC during conciliation so they can, if necessary, provide a court with evidence indicating the agency has failed to fulfill its obligation.

This article, slightly modified to note recent updates, was featured in the June 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

To subscribe to email alerts from Axley Law Firm, click here.