HR Management & Compliance

Supreme Court allows judicial review of EEOC conciliation efforts

The U.S. Supreme Court has handed employers at least a small victory by unanimously ruling that courts are allowed to review the Equal Employment Opportunity Commission’s (EEOC) conciliation efforts in discrimination cases.

On April 29, the Court imposed moderate standards for the conciliation efforts the EEOC is required to make before it files a lawsuit against an employer accused of unlawful discrimination.

“The limitations the Court created are subtle but profound,” Burton J. Fishman, a frequent contributor to Federal Employment Law Insider and attorney with Fortney & Scott, LLC in Washington, D.C., said of the ruling in Mach Mining v. EEOC. He added that the decision is the first time a court has imposed any kind of parameters on the EEOC’s conciliation process. He called it a “significant check on some of the high-handed tactics” of the EEOC in recent cases.

In the case, Mach Mining was accused of discriminating against women in hiring. The record indicated that the EEOC sent a letter informing the company of the complaint and inviting it to participate in informal conciliation proceedings. Then about a year later, the agency sent the company another letter saying it had determined that conciliation efforts had been unsuccessful.

The EEOC then filed suit in federal court. The employer claimed the EEOC did not try to conciliate in good faith, but the agency claimed that its conciliation efforts weren’t subject to judicial review. The trial court agreed with the employer that the EEOC’s actions should be reviewed by a court, but the U.S. 7th Circuit Court of Appeals decided that the law allows the EEOC to decide when conciliation is completed.

Fishman said the Supreme Court’s ruling says “good faith means something.” The parameters set out by the Court don’t create a high standard, “but at least now there are some procedural guidelines on what constitutes good-faith efforts and a court will have an opportunity to review those standards,” he said.

Fishman said the 7th Circuit was concerned that “if you open this door” allowing judicial review, “where does it stop?” But he said few employers will want to be accused of filing a frivolous lawsuit just to delay a case, and the parameters laid out by the Supreme Court are likely to make the EEOC “more careful to make sure it meets minimal standards for good-faith conciliation.”

The opinion, written by Justice Elena Kagan, notes that Title VII of the Civil Rights Act of 1964 says parties in a dispute should work to eliminate an unlawful employment practice “by informal methods of conference, conciliation, and persuasion.” The opinion says for the EEOC to meet that requirement, it “must tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” The opinion goes on to say, “If the commission does not take those specified actions, it has not satisfied Title VII’s requirement to attempt conciliation.”

“Absent such review, the commission’s compliance with the law would rest in the commission’s hands alone,” the opinion states. “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.”