A Word for the EEOC from Bob Kazamakis*

Do I look like someone who would waste my own time?

Robert California, The Office

This post takes us back to “That’s What She Said,” Ford Harrison’s earlier and excellent chronicle of The Office. After Michael Scott’s departure for marital bliss with zany HR manager Holly Flax, Dunder Mifflin floundered about in search for a new captain. For one season, that captain was Robert California, played by James Spader. California was a weirdo – a bottomless pit of self confidence, obsessed with sex, enigmatic, and prone to opaque monologues and odd rhetorical questions like the one above. United States Supreme Court

That quote popped to mind last week when I saw that the Supreme Court had decided Mach Mining, LLC v. EEOC. Mach Mining began like most EEOC charges. A female applicant filed a charge with the EEOC claiming that the company, a coal miner (not the kind of business that gets much federal agency love these days, anyway) failed to hire her because she was female. The EEOC investigated and found cause regarding the claimant and a class of similarly situated female applicants. Like other cases involving a cause finding, the EEOC sent Mach a letter to inform the company of the decision and invited it to participate in the EEOC’s informal conciliation process (many of you have likely been through similar situations). So far, so good.

That’s when problems started; or, better said, that’s when absolutely nothing started. The Supreme Court couldn’t find anything in the record to show that anything happened for about the next year. About a year later, after no activity on the file, the EEOC sent Mach another letter, declared the conciliation efforts (which, so far as the record indicated, consisted at that point of one year-old letter) to be a failure, and sued.

Mach argued that the EEOC did not conciliate in good faith before suing. For its part, the EEOC said its conciliation efforts aren’t subject to judicial review. The unanimous Supreme Court disagreed and basically said, “I don’t think so, Scooter.” According to Justice Kagan, “Congress has not left everything to the [EEOC],” and the agency may not create a fast lane to a lawsuit by inviting conciliation, rubber-stamping them a failure, and then suing.

Instead, the EEOC must follow Title VII. It has to “communicate in some way” with the employer about the alleged unlawful employment practice. It actually has to make some effort to “engage the employer in some form of discussion” to correct the alleged problem. It also must prepare to prove these steps to a court (albeit in a “barebones review” that will usually be satisfied with an affidavit from the EEOC). Back to our original quote, the EEOC must emulate Robert California and not waste its own time (or yours or a court’s for that matter).

What should you expect from this opinion? Well, one thing doesn’t change–if you receive an EEOC cause finding and the agency attempts to contact you to conciliate, you need to respond. If you don’t already have counsel engaged, that is the time to hustle and get counsel involved. After Mach Mining, however, you may see much more in writing from the EEOC during the conciliation process so they don’t risk another unanimous Supreme Court less than amused over the prospect of wasting its own time.

* If Robert California weren’t strange enough, he revealed in his last episode that Bob Kazamakis may be his real name. Can’t say I blame him for the pseudonym if that is the case.