Before suing an employer for employment discrimination under Title VII, the EEOC must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. §2000e–5(b).  Only once the Commission determines that conciliation has failed may it file suit in federal court.  On April 29, 2015, the U.S. Supreme Court issued its highly-anticipated decision in the case of Mach Mining, LLC v. EEOC and ruled – in a unanimous opinion – that Title VII authorizes judicial review of the EEOC’s efforts to satisfy its duty to conciliate before filing suit against an employer. 

In Mach Mining, a woman filed a charge with the EEOC claiming that Mach Mining, LLC, refused to hire her as a coal miner because of her gender. The Commission investigated the allegation and found reason­able cause to believe that Mach Mining discriminated against the Complainant, along with a class of women who had also applied for mining jobs with the company.  In a letter announcing its determination, the EEOC invited both Mach Mining and the Complainant to participate in “informal methods” of dispute resolution, promising that a Commission representative would soon “contact [them] to begin the conciliation process.”  The court record was unclear about what happened next, but there was no ambiguity that, about a year later, the Commission sent Mach Mining a second letter, stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful” and that any fur­ther efforts would be “futile.”  The EEOC then sued Mach Mining in federal district court alleging sex discrimination in hiring.  Mach Mining disagreed and felt the Commission hadn’t followed through on its conciliation obligation.

At the district court level, the EEOC took the position that its conciliation efforts were not subject to judicial review.  However, the Court found that it was appropriate to determine whether the EEOC made “a sincere and reasonable effort to negotiate.”  The EEOC appealed that ruling to the U.S. Court of Appeals for the Seventh Circuit, which reversed the district court, finding that there was no right of judicial review of the EEOC’s conciliation efforts.  Then the U.S. Supreme Court took up the case.

Recognizing a “strong presumption” that Congress intended to allow judicial review of administrative action unless there is clear statutory language to the contrary, the Supreme Court examined the language of the statute and readily concluded that Title VII authorizes courts to review whether the EEOC has fulfilled its duty to attempt conciliation, rather than let the EEOC entirely police itself in this regard.

Next, the Court turned to consider the proper scope of judicial review of the EEOC’s conciliation activities. The Court rejected the standards proposed by both Mach Mining and the EEOC, and instead fashioned its own test, guided again by the language used in Title VII.  The Court concluded that the EEOC’s conciliation obligation under Title VII is two-fold and requires the Commission to: (1) inform the employer about the specific allegations against it by describing both what the em­ployer has done and which employees, or class of employees, have suffered as a result; and (2) try to engage the employer in some form of discussion, so as to give the employer an opportunity to remedy the allegedly discriminatory prac­tice and obtain voluntary compliance.  The Court ruled that judicial review of those requirements – and nothing else – strikes the proper balance by ensuring that the EEOC complies with its obligation to conciliate, while simultaneously allowing the EEOC to exercise some discretion to decide how to conduct concil­iation efforts and when to end those efforts in each particular case.

The Court in Mach Mining went on to say that – in general – a sworn affidavit from the EEOC stating that it has performed its conciliation requirements, but that such efforts have failed, will suffice to show that it has met the conciliation requirement.  The Court cautioned, however, that if an employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, then a court must undertake fact-finding to decide that limited dispute.  The Court instructed that in instances where the EEOC failed to perform its conciliation obligation, the appro­priate remedy would be simply to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.

In light of the Supreme Court’s decision, employers should take appropriate steps to maintain careful and detailed documentation regarding any conciliation efforts by the EEOC.  Employers also need to be aware that, even if they are successful, their remedy is likely to not be substantive, but one which simply directs the EEOC to do what it didn’t do the first time.  That may not be what most in the employer community were hoping to come from the Mach Mining case, but on balance, it’s probably not surprising the agency was given some deference in this regard, given the variety of circumstances the agency confronts in conciliating various types of cases.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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