Courts may review whether the EEOC satisfied its statutorily mandated obligation to attempt conciliation before filing suit, although the scope of judicial review is narrow.
In a unanimous opinion issued on April 29, the US Supreme Court held that courts have authority to review whether the Equal Employment Opportunity Commission (EEOC) fulfilled its statutorily mandated conciliation obligations before filing suit under Title VII. Although the scope of judicial review is relatively narrow, the Court held that judges must ensure that the EEOC, at a minimum, notifies an employer about a specific discriminatory practice and the specific person or class involved and provides the employer with an opportunity to discuss the claims in an effort to resolve them.
In Mach Mining, LLC v. EEOC, a female job applicant filed a charge of discrimination with the EEOC claiming that Mach Mining refused to hire her as a coal miner because of her gender. After investigating the claim, the EEOC found probable cause to believe that Mach Mining discriminated against the applicant, along with a broader class of women who had also applied for mining positions. The EEOC then sent a determination letter to Mach Mining and invited it to participate in informal attempts at resolution. From there, however, the record did not reflect any other action until the EEOC sent Mach Mining a second letter about a year later stating that conciliation efforts had been unsuccessful. The EEOC then filed suit in federal district court.
In defending against the EEOC’s claims, Mach Mining asserted the EEOC’s failure to conciliate as an affirmative defense. The EEOC sought summary judgment on that affirmative defense, arguing that its conciliation efforts were not subject to judicial review. The US District Court for the Southern District of Illinois disagreed, denying the EEOC’s motion and concluding that courts could review whether the EEOC made a “sincere and reasonable effort to negotiate” before filing suit. On appeal, the US Court of Appeals for the Seventh Circuit reversed. Disagreeing with several other courts of appeals, the Seventh Circuit held that the EEOC’s “statutory directive to attempt conciliation” is “not subject to judicial review.” The court reasoned that Title VII’s statutory provisions entrust the scope of conciliation solely to the EEOC’s discretion and provide no meaningful standard for reviewing courts to apply.
The Supreme Court’s decision in Mach Mining resolved two questions. First, are courts empowered to review the EEOC’s attempts to conciliate? Second, if so, what standard should judges apply to undertake that review?
On the first point, the Court rejected the government’s argument that the EEOC’s conciliation efforts are categorically immune from judicial scrutiny. The Court began by emphasizing the presumption that agency actions are subject to judicial review unless Congress expressly prohibits judicial review. Title VII, the Court found, contains no such prohibition. To the contrary, the Court likened the EEOC’s conciliation obligations to the other statutory prerequisites to suit under Title VII that are regularly reviewed and enforced by courts—such as the requirements that an employee file a timely charge and secure a right-to-sue notice. These parallels, the Court reasoned, supported judicial review of the conciliation requirement. The Court also concluded that without such review, the EEOC’s compliance with the law “would rest in the [EEOC’s] hands alone,” a result Congress cannot have intended.
Turning to the second question regarding the proper scope of review, the Court weighed competing proposals. The EEOC argued for virtually no review at all, insisting that courts should undertake no more than a “facial examination” of the sort of “bookend letters” that the EEOC sent to Mach Mining. This limited inquiry, the government contended, would confirm whether the EEOC attempted conciliation as required under Title VII. Mach Mining argued for a higher level of scrutiny and suggested that courts should ensure that the EEOC “negotiated in good faith” during conciliation. It urged that courts should be authorized to confirm that the EEOC (1) communicated the “minimum” remedial award it would accept to resolve the claims at issue; (2) detailed the legal and factual basis for its claims, including the calculations underlying any monetary request; and (3) declined to adopt a “take-it-or-leave-it” approach to negotiation.
The Supreme Court rejected both parties’ proposed standards. The Court explained that, under the EEOC’s proposal, a court could not ensure that the EEOC actually attempted conciliation. Simply confirming the existence of the sort of “bookend letters” that the EEOC sent to Mach Mining is not equivalent to verifying that conciliation was attempted. By the same token, the Court held that Mach Mining proposed too “deep [a] dive into the conciliation process” given the flexibility that Title VII grants the EEOC with respect to that process. The Court was also concerned that such a substantive review of details of the conciliation process would jeopardize the confidentiality protections guaranteed by the statute.
On balance, the Court adopted a middle ground and looked to the precise nature of the EEOC’s conciliation obligations under the statute to “tell the employer about the claim—essentially, what practice has harmed which person or class—and” to “provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” With these points in mind, the Court held that judicial review of conciliation efforts should be limited to verifying that the EEOC (1) informed the employer about the “specific allegation” by outlining “both what the employer has done and which employee (or what class of employees) have suffered as a result” and (2) tried to “engage the employer in some form of discussion (whether written or oral)” to resolve the allegedly discriminatory practice.
The Court held that a sworn affidavit from the EEOC confirming that it performed these obligations will generally suffice, but it recognized that if an employer provides credible evidence disputing those factors, a court may need to engage in a limited amount of fact finding to resolve the dispute. The Court did not, however, elaborate on what that fact finding would entail. Finally, the Court held that the appropriate remedy when the EEOC fails to carry out its conciliation obligations is for a court to order the EEOC to go back to the drawing board and conciliate, staying litigation where appropriate. In other words, the Court seemed to impliedly reject the idea that the EEOC’s failure to properly conciliate can serve as a viable basis for dismissing a suit.
The Mach Mining decision will have at least three important ramifications for employers that conciliate with the EEOC and face potential lawsuits by the EEOC.
First, the Supreme Court’s decision could result in the EEOC issuing broader requests for information during the investigation phase. The EEOC may contend that because it must identify claimants and any potential class during conciliation and specify the claims asserted, such requests are necessary to uncover all claims encompassed by or related to the underlying charge of discrimination that prompted the EEOC’s investigation.
Second, the decision will require the EEOC to provide basic information to employers during the conciliation process. Before the Mach Mining decision, the EEOC may have, in some instances, resisted providing employers with information regarding the individuals or class of individuals on whose behalf it was conciliating or the scope of the claims asserted. However, based on the decision, the EEOC will likely need to be more forthcoming during the conciliation process to ensure that the process is meaningful. Otherwise, the employer could argue that the EEOC did not conciliate in good faith.
That said, the precise information that the EEOC must provide during conciliation remains uncertain, and as a result, the Mach Mining decision could perpetuate disagreement among courts of appeals. The decision requires that the EEOC identify “specific allegations” during the conciliation process and show that it tried to “engage the employer in some form of discussion.” What this means will likely be subject to interpretation. Also subject to interpretation will be (1) the types of “credible evidence” that can rebut the EEOC’s representations regarding conciliation and (2) what review will be conducted if an employer presents “credible evidence” that the EEOC failed to conciliate.
Before the Mach Mining decision, there was a circuit split regarding the extent to which courts can review the EEOC’s conciliation efforts. Besides the Seventh Circuit’s decision in Mach Mining, the Sixth and Eighth Circuits had also considered the issue. In Serrano et al. and EEOC v. Cintas Corporation, 699 F.3d 884 (6th Cir. 2012), the Sixth Circuit held that the EEOC was only required to show that it made a good faith effort to conciliate such that the employer had notice of the potential suit. In contrast, in EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012), the Eighth Circuit concluded that the EEOC could only sue on behalf of individuals who it identified during conciliation, whose allegations were actually investigated, and on whose behalf the EEOC actually attempted to conciliate. Similar disagreements may arise again as courts begin to address what is required under Mach Mining.
Third, the decision should prompt employers to attempt to engage with the EEOC during the conciliation process and to document their efforts to do so. If, despite these efforts, the EEOC does not engage with the employer, these communications could provide the “credible evidence” needed to permit courts to look beyond the EEOC’s representations that it engaged in a meaningful conciliation process.
The Supreme Court’s decision in Mach Mining makes clear that courts can review the EEOC’s conciliation efforts and determine whether the EEOC has satisfied its statutory obligation to conciliate. Although the Court suggested that this review will generally be limited and narrow, its precise contours remain uncertain, as does the scope of review that will be undertaken in the event that some evidence suggests that the EEOC did not conciliate in good faith. Accordingly, although the decision resolves the question of whether courts can review the EEOC’s conciliation efforts, it has left many other questions unanswered about how the review will be undertaken.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Lisa Stephanian Burton
Thomas F. Hurka
Mark E. Zelek
Melinda S. Riechert