EEOC Conciliation Efforts Are Subject to Judicial Review

Edgar M. Rivera, Esq. 

On April 29, 2015, the Supreme Court of the United States (“SCOTUS”) decided Mach Mining L.L.C. v. Equal Employment Opportunity Commission, which addressed the issue of whether and how courts may review the U.S. Equal Employment Opportunity Commission (“EEOC”)’s efforts to attempt to remedy unlawful workplace practices through conciliation prior to filing a lawsuit.

The EEOC is the federal agency tasked to enforce federal anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 (“Title VII”), which requires the EEOC to attempt conciliation between the parties before filing a lawsuit.  After an aggrieved individual files a charge of an unlawful workplace practice with the EEOC, the EEOC must notify the employer and undertake an investigation. If the EEOC does not find reasonable cause to pursue the claim, it dismisses the charge and notifies the parties. The aggrieved party may then pursue his or her own lawsuit if he or she chooses to do so. If the EEOC finds reasonable cause to bring a Title VII claim, it must, “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion,” prior to filing a lawsuit against the employer.

In Mach Mining L.L.C., a woman filed a charge with the EEOC claiming that Mach Mining, LLC had refused to hire her as a coal miner because she was female. The EEOC investigated the allegations and found reasonable cause. In a letter announcing that determination, the EEOC invited both the company and complainant to participate in “informal methods” of dispute resolution, promising that an EEOC representative would soon contact them to begin the process. The record did not disclose what, if anything, happened in furtherance of that promise; however, approximately one year later, the EEOC sent Mach Mining a second letter, stating that such conciliation efforts had occurred and were unsuccessful. The EEOC then sued Mach Mining, alleging gender discrimination.

Mach Mining claimed that the EEOC had not attempted to conciliate in good faith, evidenced by the lack of follow-up to the first letter. The EEOC responded that its conciliation efforts were not subject to judicial review and that, regardless, the two letters it sent to Mach Mining provided adequate proof that it had fulfilled its statutory obligation. The district court agreed with Mach Mining, stating the courts could review the adequacy of the EEOC’s efforts. The Court of Appeals for the Seventh Circuit reversed. SCOTUS granted certiorari to address whether and to what extent the EEOC’s attempt to conciliate is subject to judicial review.

SCOTUS answered the first question in the affirmative, reasoning that at least a “smidgen” of judicial review was necessary because if the EEOC did not “endeavor” at all, it would fail to satisfy a necessary precondition to filing a lawsuit. SCOTUS further reasoned that because the “informal methods” in the statute all necessarily involve communication between parties, including the exchange of information and views, the EEOC’s conciliation attempt must at least include such communications. The Court concluded that the EEOC must inform the employer about the specific allegations, describing what the employer had done and which employees have suffered as a result, and must try to engage the employer in some form of discussion so as to give the employer an opportunity to remedy the allegedly discriminatory practice to meet the statutory condition to file suit. If the EEOC does not take those specified actions, it has not satisfied the statutory requirements and, therefore, cannot file suit. Thus, in a unanimous decision, SCOTUS held that the courts may review the EEOC’s actions to determine whether it has fulfilled its duty to attempt conciliation of claims based on the above-mentioned requirements, and remanded the case. The Court stated that this approach ensures that the EEOC complies with its statutory obligation while allowing it to exercise the discretion it has under the statutory framework to decide how to conduct conciliation efforts and when to end them.

If you believe your employer has discriminated against you and have already filed a charge with the EEOC, please contact The Harman Firm, LLP.