Supreme Court Clarifies Scope Of Judicial Review Of EEOC Conciliation Process

By Clark Taylor posted 05-01-2015 05:47 PM


The U.S. Supreme Court issued a decision on April 29, 2015 in Mach Mining, LLC v. EEOC regarding whether any judicial review of the Equal Employment Opportunity Commission’s (EEOC) conciliation efforts under Title VII is appropriate, resolving a circuit split.  In a unanimous opinion authored by Justice Elena Kagan, it held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit.” Recognizing, however, “the abundant discretion the law gives the EEOC to decide the kind and extent of [conciliation] discussions appropriate in any given case,” the Court provided for a narrow scope of judicial review. NELA joined an amicus brief in support of the EEOC authored by NELA members Michael L. Foreman, Director of the Civil Rights Appellate Clinic at Penn State's Dickinson School of Law, and Jocelyn D. Larkin and Robert L. Schug of the Impact Fund.

The case began in 2008 when a woman applied for a job as a coal miner with Mach Mining. Her application was rejected and she filed a charge of discrimination with the EEOC, alleging that Mach Mining, which had never hired a woman for a mining position, refused to hire her because of her gender. The EEOC conducted an investigation, found reasonable cause to believe that Mach Mining had discriminated against a class of women, and invited the company to conciliate. One year later, the EEOC notified Mach Mining that conciliation efforts were unsuccessful and filed suit.

Mach Mining raised as an affirmative defense that, prior to filing suit, the EEOC failed to conciliate in good faith. The EEOC responded on a motion for summary judgment that the adequacy of its conciliation efforts are not subject to judicial review. The trial court sided with Mach Mining, holding that the appropriate level of judicial review of EEOC conciliation efforts should be “whether the Commission had made ‘a sincere and reasonable effort to negotiate.’” On appeal, the Seventh Circuit Court of Appeals reversed, holding that the conciliation process undertaken by the EEOC is “not subject to judicial review.” In reaching that decision the Seventh Circuit found that “judicial review of the conciliation process would ‘undermine enforcement of Title VII’ by ‘protracting and complicating’ discrimination suits.” The question before the Supreme Court was whether and to what extent a court may enforce the EEOC's mandatory duty to conciliate discrimination claims before filing suit. 

The Supreme Court first addressed the question of whether courts should review the conciliation procedures undertaken by the EEOC at all. The Court acknowledged that Title VII grants the EEOC “wide latitude” over the conciliation process but the law “has not left everything to the Commission.” The Court reviewed the statutory language and identified the procedures in the text to which the EEOC must adhere. Consistent with the Court's jurisprudence of applying a strong presumption in favor of judicial review of administrative actions, it deemed the EEOC’s conciliation efforts as suitable for judicial review. Having established that some amount of judicial review is proper, the Court next addressed the scope of that review. Mach Mining urged that the judicial review should resemble that undertaken by courts to determine the existence of good-faith negotiations in the context of collective bargaining governed by the National Labor Relations Act. The Court rejected this analogy and noted that “the NLRA is about process” and “Title VII ultimately cares about substantive results, while eschewing any reciprocal duties of good-faith negotiation.” To adopt Mach Mining’s position would be contrary to the statutory regime of Title VII which granted the EEOC the power to make “strategic decisions” and would instead only “impose extra procedural requirements.” It also would "flout Title VII's protection of the confidentiality of conciliation efforts." The Court concluded by affirming the conciliation authority of the EEOC under Title VII, noting that “courts may not impinge on that latitude and on the Commission’s concomitant responsibility to eliminate unlawful workplace discrimination.” The Court made clear that after conducting a “barebones review” if it is determined that the EEOC did not engage in conciliation prior to filing suit, the appropriate remedy is limited to ordering the EEOC to undertake conciliation efforts to obtain voluntary compliance at that time, suggesting that the litigation could be stayed in the meantime. 

Employee advocates welcomed the Supreme Court’s clarification of the law. Robert Schug of the Impact Fund believes that the decision bodes well for EEOC’s future efforts to end discrimination in employment disputes, stating that “the Court’s explicit rejection of the intrusive review advocated by Mach Mining and its supporters will ensure that the conciliation process is used, as it was intended, to encourage frank, confidential settlement discussions, aimed at bringing discrimination to an end.” EEOC General Counsel David Lopez echoed that sentiment in a press release, saying “this unanimous decision is great news for victims of discrimination on whose behalf we are seeking relief—and for the public, which ultimately benefits from our work.”

#USSupremeCourt #Amicus #TitleVII