The Employer's Legal Resource: Supreme Court Rules EEOC Must Conciliate Before Suing

05.01.15

In an interesting decision that may, practically speaking, be much ado about nothing for most of you, the United States Supreme Court held on April 29 that courts did have the power to review whether the Equal Employment Opportunity Commission (EEOC or Commission) properly attempted to conciliate claims of discrimination prior to bringing a lawsuit. However, the review is limited. But, let's step back a minute.

As you know, a person files a charge of discrimination with the EEOC. "If the Commission determines after [its] investigation that there is not reasonable cause to believe that the charge is true, it shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action." 42 U.S.C. § 2000e-5(b). However, the EEOC might also find there is cause to believe the charge is true.

"If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission ..., or used as evidence in a subsequent proceeding without the written consent of the persons concerned." § 2000e-5(b). It is this language that was the subject of the newly-pronounced Supreme Court decision in Mach Mining, LLC v. Equal Employment Opportunity Commission.

In Mach Mining, the EEOC sued on behalf of a female coal miner and a class of female coal miners. It did so after one female coal miner filed a charge of discrimination with it. After the investigation, the EEOC found reasonable cause to believe gender discrimination had occurred. In its letter to Mach Mining announcing its determination, the EEOC "invited" the employer and the complaining party to participate in a conciliation process, noting that someone would contact them soon about the process. There was a second letter from the EEOC to Mach Mining about one year later noting that "such conciliation efforts as are required by law have occurred and have been unsuccessful." The EEOC declared that any further efforts would be "futile." Shortly thereafter, the EEOC sued Mach Mining. As one of its defenses, Mach Mining claimed the EEOC failed to conciliate as required by § ; 2000e-5(b).

The EEOC moved for summary judgment on this issue and immediate appeals were taken -- all the way to the United States Supreme Court. We learned two things.

First, despite the EEOC's position that the courts have no business looking over its shoulder on this issue, the Supreme Court said courts absolutely could review this. Your takeaway -- This is a defense an employer may raise if the EEOC has issued a reasonable cause determination against it. The reason is simple. If the Court were not allowed to review it, there would be no check on the EEOC.

Second, even though the Court can review this issue, its review is extremely limited. The Court spent the majority of its opinion describing the parameters of the EEOC's obligation -- which are narrow -- and the problems with any significant scrutiny by the courts of that obligation. The Court stated the following with regard to the EEOC's obligation:

So the EEOC, to meet the statutory condition, must tell the employer about the claim -- essentially, what practice has harmed which person or class -- and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. ... If the Commission does not take those specified actions, it has not satisfied Title VII's requirement to attempt conciliation.

The Court found the two letters submitted by the EEOC discussed above were not sufficient. However, it wouldn't require much more. It would generally suffice if the EEOC submitted an affidavit in concert with those letters swearing it told the employer about the claim, provided the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance, but those efforts did not resolve the matter to the EEOC's satisfaction.

If the employer also submitted credible evidence (let's say a sworn affidavit) that the EEOC did not meet its obligation, the Court might determine there was a factual determination to be made.

How will this decision impact the EEOC and employers?

The EEOC is likely to go through the appropriate steps, including engaging in efforts to resolve the matter, before suing your company. You and your counsel will determine whether to resolve the matter at that stage. However, you may want to conduct a benefit analysis of claiming the "failure to conciliate" defense. As the Court noted, "[s]hould the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance." In other words, if you win on this defense, the court will likely stay the lawsuit while the parties are ordered to participate in the EEOC's conciliation process. If the conciliation process does not resolve the lawsuit, the lawsuit simply proceeds. So, back to the introductory sentence, for the majority of employers, this case may be much ado about nothing

By Kristen L. Brightmire, kbrightmire@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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