U.S. Supreme court holds that courts are permitted to judicially review whether the EEOC fulfilled its duty to attempt conciliation prior to initiating a lawsuit
A woman filed a Charge of Discrimination against Mach Mining, alleging that its failure to hire her as a coal miner constituted gender discrimination. The EEOC later found that “reasonable cause” existed that the company had discriminated against a class of women who also applied for mining jobs. Following the determination, the EEOC investigator assigned to the Charge sent the company a letter, inviting it to participate in “informal methods” of dispute resolution in an attempt to conciliate the charge and stating that the investigator would soon “contact [them] to begin the conciliation process.” Approximately one year later, the EEOC sent a second letter, stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful.” The EEOC then filed its lawsuit against the company.
In defense of the lawsuit, Mach Mining argued that the EEOC failed to comply with its statutory requirement to conciliate and that the court should review whether the EEOC had made “a sincere and reasonable effort to negotiate.” The EEOC argued, however, that its “conciliation efforts are not subject to judicial review.” The Seventh Circuit agreed with the EEOC, holding that “the statutory directive to attempt conciliation” is “not subject to judicial review,” reasoning that the law entrusts conciliation “solely to the EEOC’s expert judgment.”
The Supreme Court, however, reversed the decision of the Seventh Circuit, holding that “[t]his Court has long applied a strong presumption favoring judicial review of administrative action” and “[n]othing overcomes that presumption with respect to the EEOC’s duty to attempt conciliation of employment discrimination claims.” The Supreme Court, however, rejected both parties’ proposals regarding the appropriate scope of what the courts should review. Specifically, the Supreme Court determined that “the EEOC must inform the employer about the specific allegation” and that the “notice [must] properly describe[] both what the employer has done and which employees (or class of employees) have suffered as a result.” The Court further determined that the “EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.”
While this decision makes clear what the EEOC’s requirements are when it attempts to conciliate a charge of discrimination, its implicit rejection that the EEOC must conciliate in good faith will create more problems for employers in the future. Indeed, the “opportunity to remedy the allegedly discriminatory practice” will likely be a settlement demand letter from the EEOC that will request 5-10 times what the actual settlement value of the case will be, thereby leading to more litigation of these claims. This, of course, is the exact opposite of the purpose of conciliation, which is designed to avoid protracted litigation. With this, employers must be diligent in engaging counsel and responding to Charges of Discrimination as soon as they receive notice of them as they will have a better opportunity to avoid this conciliation process altogether.
Case Law Alerts, 3rd Quarter, July 2015
Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.