Labor & Employment Law Blog

On April 29, 2015, the U.S. Supreme Court unanimously held that lower courts have authority to review whether the EEOC fulfilled its duty to attempt conciliation (typically through mediation with the parties) under Title VII of the Civil Rights Act of 1964. In that review, courts should narrowly consider whether the EEOC gave the employer notice and an opportunity to achieve voluntary compliance with Title VII’s employment discrimination prohibition. (Mach Mining, LLC v. Equal Employment Opportunity Commission (2015) 135 S.Ct. 1645.)

Before the Court’s decision in Mach Mining, federal appellate courts disagreed on whether and how to review the EEOC’s efforts to resolve discrimination allegations informally before initiating a lawsuit against an employer.

Background

Title VII requires the EEOC to attempt to informally resolve a discrimination charge before the EEOC files a lawsuit against the employer on behalf of the aggrieved worker. Congress chose cooperation and voluntary compliance as the preferred means of pursuing the goal of eliminating employment discrimination. (See Ford Motor Co. v. EEOC (1982) 458 U.S. 219, 228.)    Accordingly, Title VII requires the EEOC to “endeavor to eliminate [an] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” (42 U.S.C. § 2000e–5(b).) These efforts are a necessary precondition to filing a lawsuit; only if the EEOC is “unable to secure” an acceptable conciliation (settlement) agreement may EEOC file a lawsuit against the employer. (See 42 U.S.C. § 2000e–5(f)(1).)

To further the goal of informal efforts at conciliation, the parties must agree to confidentiality and to an absolute prohibition on using anything “said or done” during conciliation as evidence in a subsequent lawsuit, without written consent of the parties. (See 42 U.S.C § 2000e–5(b).)

The Mach Mining Decision

A woman filed a charge with the EEOC claiming the employer, Mach Mining, LLC, refused to hire her as a coal miner because of her sex. The EEOC’s investigation found reasonable cause to conclude Mach Mining discriminated against the woman, along with a class of similarly situated women. The EEOC sent two letters to Mach Mining before initiating its lawsuit. The first letter invited the parties to participate in “informal methods” of dispute resolution and indicated an EEOC representative would contact the parties to begin the process. The second letter, a year later, asserted that “such conciliation efforts as are required by law have occurred and have been unsuccessful” and any further efforts would be “futile.” The EEOC then sued Mach Mining in federal district court. As an affirmative defense, Mach Mining alleged the EEOC failed to meet its statutory duty to make efforts to informally resolve the unlawful employment practice.

The EEOC contended it had fulfilled its statutory obligations, and its conciliation efforts were not reviewable by the courts beyond the two letters it sent to Mach Mining prior to filing the lawsuit. The Court disagreed, holding the EEOC’s two “bookend” letters leave no way for courts to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge.

Mach Mining asked the Court to consider the parties’ conciliation process more extensively and contended the EEOC failed to make a “good faith effort” to conciliate. The Court also rejected this argument, holding a deeper inquiry into the conciliation process would violate Title VII’s confidentiality provisions. Instead, courts should consider whether the EEOC afforded the employer a chance to discuss and rectify a specified discriminatory practice, but the review should go no further. Under this ruling, courts may consider whether the EEOC attempted to confer about a charge, but not what happened during those discussions.

Conclusion

To meet the statutory condition, the EEOC must notify the employer of the claim and provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. A sworn affidavit from the EEOC that it has attempted informal resolution, but those efforts have failed, will usually suffice. If, however, the employer provides credible evidence that the EEOC did not meet the requirements, a court must decide the dispute. If a court finds the EEOC failed in its obligation, the appropriate remedy is to order the EEOC to engage in the mandated process. (See 42 U.S.C § 2000e–5(f )(1) [authorizing a stay of a Title VII action for this purpose].)

Employers should expect the EEOC to be more aggressive in its pursuit of the conciliation process in order to build evidence that it made a good faith effort to do so.  An EEOC charge sent to an employer typically includes information about EEOC’s conciliation process. Employers, however, are not required to engage in conciliation. The decision whether to participate should be made based on the facts of the case and in consultation with legal counsel.  If the employer does not respond or conciliation efforts are not successful, the employer can expect the EEOC to follow through with legal action in court.