EEOC suffers minor setback

April 29, 2015 | By RALPH KASARDA

Today’s Supreme Court decision in Mach Mining, LLC v Equal Employment Opportunity Commission appears to be another minor setback for the EEOC.

The EEOC has a statutory duty under Title VII to attempt to eliminate a violation by informal means before it resorts to a lawsuit.  The question in this case was whether a court may review EEOC’s conciliation efforts to determine if the EEOC acted in good faith before suing.  The Seventh Circuit said no.  The Supreme Court said the conciliation efforts are reviewable, vacated the decision of the Seventh Circuit, and remanded.

Generally, an aggrieved person notifies the EEOC of an employer’s suspected violation of Title VII.  The EEOC then notifies the employer of the complaint and undertakes an investigation.  If the EEOC finds no reasonable cause to believe the allegation has merit, it dismisses the charge and notifies the parties.  The person who initially notified the EEOC may then file a lawsuit without EEOC involvement.

If the EEOC does find reasonable cause of a violation, it may file its own action in court.  But before it may do that, it must first undertake conciliation efforts to allow the employer and employee an opportunity to resolve the dispute.  The statute provides that EEOC must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

The Supreme Court today held that the EEOC’s conciliation efforts are reviewable.  But the scope of a court’s review is narrow in recognition of the EEOC’s “extensive discretion” to determine the kind and amount of communication with an employer that is appropriate in any given case.

In order to comply with that provision, the EEOC must inform the employer about the specific discrimination allegation. The notice must describe what the employer has done and which employees (or class of employees) have suffered. And the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. A sworn affidavit from the EEOC stating that it has performed these obligations will suffice to show that it has met the conciliation requirement. Should the employer present “concrete evidence” that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to resolve that limited dispute.  Should it find for the employer, the appropriate remedy is to order the EEOC to undertake the mandated conciliation efforts.

The decision was written by Justice Kagan with no dissenting opinions.