May 24, 2022

Volume XII, Number 144

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May 23, 2022

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Supreme Court Rules EEOC Conciliation Efforts Are Subject To Oversight

On April 29, the US Supreme Court held unanimously that courts may review the Equal Employment Opportunity Commission’s (EEOC) efforts to informally resolve disputes between employers and employees.

The EEOC, which is charged with policing compliance with employment discrimination laws, is required by statute to first try informal mediation methods to resolve disputes between employers and employees. When those efforts fail, the agency may sue the employer. The decision in Mach Mining v. EEOC makes clear that courts have the authority to examine whether the EEOC’s conciliation efforts were sufficient.

In Mach Mining, an employee filed a charge with the EEOC alleging that Mach had refused to hire her because of her sex. After an investigation, the agency concluded there was enough evidence to suggest discrimination. It wrote to both the company and the woman inviting their participation in informal dispute resolution efforts. A year later, the EEOC sent Mach a letter indicating that any further conciliation efforts would be “futile.” It is not clear what happened in the interim that led the agency to its conclusion.

The agency sued Mach, and in response, and the company alleged the EEOC had not attempted to resolve the matter in good faith before filing its lawsuit. The EEOC argued its conciliation efforts are not subject to judicial review, and that even if they were, the two letters to Mach were sufficient evidence to proceed to litigation.

The Supreme Court found that Title VII – one of the anti-discrimination laws the EEOC enforces – did not specifically exempt the agency’s conciliation efforts from judicial review and that, in fact, courts routinely enforce the statute’s prerequisites to litigation.

“Congress has not left everything to the Commission,” the Court found. “Absent [court] review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result. We need only know—and know that Congress knows—that legal lapses and violations occur, and especially so when they have no consequence.”

As to the scope of a court’s review, though, the Supreme Court rejected both the EEOC’s claim that the bookend letters were sufficient evidence of its settlement efforts, and Mach’s strategy of requiring the EEOC to meet a “good faith” standard. The EEOC’s standard would not hold the agency accountable enough, the Court said. And Mach’s standard would violate the flexible spirit of Title VII, while also jeopardizing the confidentiality of the conciliation process.

The Supreme Court indicated that the EEOC will need to provide sworn affidavits that it gave the employer the required information about the charges and engaged in discussion about conciliation. That will be sufficient to proceed with the lawsuit unless the employer submits evidence that the EEOC affidavit is false.

In all likelihood, this decision will not have a particularly big impact on most EEOC lawsuits. Unless an employer has real evidence that the EEOC did not discuss conciliation or informal resolution of the dispute, then an EEOC lawsuit will be allowed to proceed. Only in the rare case where an employer can prove the EEOC either did not give notice of the charges or did not attempt to discuss alternative resolution methods will a court dismiss the case. Even if an employer wins a dismissal, that simply means the EEOC must go back and try conciliation before suing again.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume V, Number 119
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About this Author

Emily R. Spivack Labor & Employment Attorney Squire Patton Boggs Cleveland, OH
Associate

Emily Spivack is an associate in the firm’s Labor & Employment Group where her practice focuses on issues facing employers and public school districts.

Emily’s practice includes advising school clients in student discipline matters, contract and policy drafting, and employment questions. She regularly defends districts before the Ohio Civil Rights Commission and the US Department of Education’s Office for Civil Rights. She also has extensive experience with public records and public meetings questions, both under the Ohio Sunshine Laws and the federal Freedom of Information Act...

216-479-8001
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