Thursday, April 30, 2015

Supreme Court ruling on EEOC conciliation obligations is a Pyrrhic victory for employers

One question that employers always ask upon receipt of an EEOC charge of discrimination is, “How does this process work?” After the EEOC concludes its investigation, it has two basic options. It can conclude that no reasonable cause exists that the employer violated Title VII and dismiss the charge (leaving the employee to file his or her own lawsuit in federal court within 90 days), or conclude that reasonable cause does exist (again leaving the employee to file his or her own lawsuit, or instituting a lawsuit on the employee’s behalf).

Before the EEOC can file its own discrimination lawsuit against an employer, Title VII requires that the agency “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” What happens, however, if the EEOC fails to conciliate? What is scope of the EEOC’s conciliation obligation? And does a failure act as a bar to any subsequent lawsuit filed by the EEOC?

These were the question the Supreme Court considered in Mach Mining, LLC v. EEOC [pdf]. This is what the Court unanimously concluded:

  1. Courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation.

  2. The statute only requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. Such notice must describe what the employer has done and identify the employees (or class of employees) that have suffered. The EEOC then must try to engage the employer in a discussion to provide the employer a chance to remedy the allegedly discriminatory practice. Title VII does not, however, require a good-faith negotiation.

  3. The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.

  4. Should a court conclude (based on “concrete evidence” presented by the employer) that the EEOC did not provide the employer the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, the appropriate remedy is to stay the proceedings and issue an order requiring the EEOC to undertake the mandated conciliation efforts. Dismissal of the lawsuit is not warranted in these circumstances.

Technically speaking, you can chalk this case up as a victory for employers, albeit a narrow one. The Supreme Court refused to hold that Title VII imposes a duty on the EEOC to negotiation in good faith, and that the agency satisfies its obligation to conciliate merely by providing notice and an opportunity to discuss. Moreover, a failure to conciliate doesn’t serve as a jurisdictional bar to litigation, but merely results in the EEOC being told to “try again, this time with meaning.”

If nothing else, this case sends a strong message that courts favor resolution, not litigation.