EEOC Conciliation Efforts Subject To (Limited) Judicial Review

May 5, 2015

On April 29, 2015, a unanimous United States Supreme Court held in Mach Mining, LLC v. EEOC that the Equal Employment Opportunity Commission’s (“EEOC”) pre-lawsuit conciliation efforts with an employer are subject to judicial review. However, the Court also found that such judicial review is “narrow” in scope, given the EEOC’s “extensive discretion” in such matters.

Before initiating a lawsuit against an employer for alleged discrimination, Title VII of the Civil Rights Act 1964 requires the EEOC to notify the employer of the complaint and perform an investigation to discern whether the allegations have merit. If the agency determines that the allegations have merit, Title VII then requires the EEOC to “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” The EEOC may bring a lawsuit if it determines that conciliation efforts have failed.

In Mach Mining, a female job applicant claimed that the company had engaged in discriminatory hiring practices based on sex. After the EEOC performed its investigation, the agency determined that it had “reasonable cause” to believe that Mach Mining had engaged in unlawful discrimination against the woman and her similarly situated female peers. The EEOC then sent a letter to Mach Mining and the applicant stating that it would initiate informal conciliation. However, no conciliation ever occurred. A year later, the EEOC sent a second letter to Mach Mining stating that, since conciliation efforts had been unsuccessful, the agency would file a lawsuit against Mach Mining for its discriminatory hiring practices. In the subsequent lawsuit, Mach Mining argued that the EEOC had failed to “concilat[e] in good faith,” and thus the lawsuit was improper since conditions precedent to filing suit had not been met. The EEOC alleged that its efforts to conciliate (or lack thereof) were not subject to judicial review.

In rejecting the EEOC’s position, the Supreme Court found a “strong presumption” for judicial review of administrative agencies’ actions. Since the language of Title VII supports judicial review of prerequisites to suit—such as conciliation attempts—the Court concluded that judicial review of the EEOC’s conciliation efforts was in accord with Title VII.

However, the Court stated that the scope of review of the EEOC’s conciliation efforts is not limitless, stating that a reviewing court can only undertake a “barebones” review of the EEOC’s attempts at conciliation, because of the extensive discretion afforded to the EEOC under Title VII. As a result, a court’s review is limited to: 1) whether the EEOC has informed the employer about what practices are allegedly discriminatory and which employees it has harmed; and, 2) whether the EEOC and the employer have discussed the option(s) to remedy the allegedly harmful practices. An affidavit from the EEOC stating that these two requirements have been met will suffice as proof of conciliation. However, an employer can then offer “credible evidence” (including an affidavit of its own) that the EEOC did not meet one or both of these requirements. If this factual dispute arises, the reviewing court must then engage in limited fact-finding to provide a resolution. Ultimately, should the reviewing court agree with the employer, it will order the EEOC to make adequate conciliation efforts.

Unfortunately, the Mach Mining decision leaves many related questions unresolved, including what specific information the EEOC must provide to employers during conciliation and the types of “credible evidence” that are adequate to rebut the EEOC’s assertions about its conciliation efforts.   Employers should nonetheless be aware that the EEOC now has a greater incentive to fulfill its conciliation obligations and counsel for employers should pay particular attention to the EEOC’s conciliation efforts.