On November 4, 2014, NELA joined the Impact Fund, AARP and other organizations to file an amicus brief in support of respondent EEOC in the case of Mach Mining, LLC v. EEOC, Case No. 13-1019, pending in the U.S. Supreme Court. The question presented in this case is: Whether and to what extent may a court enforce the Equal Employment Opportunity Commission’s duty under 42 U.S.C. § 2000e-5(b), (f)(1) to conciliate discrimination claims before filing suit. The amicus brief was drafted by NELA Amicus Advisory Council Co-Chair Michael L. Foreman and the Civil Rights Appellate Clinic at the Pennsylvania State University’s Dickinson School of Law, which he directs, and NELA members Jocelyn Larkin and Robert Schug at the Impact Fund.
The case arose in 2008 when a rejected female applicant for a mining position filed a charge of discrimination with the EEOC, alleging that Mach Mining, which had never hired a woman for this position, refused to hire her based on her gender. After conducting an investigation, the EEOC found reasonable cause to believe Mach Mining had discriminated against a class of women who applied for mining-related jobs, and invited it to conciliate. From late 2010 to late 2011, conciliation was attempted, but no agreement was reached. The EEOC then filed suit, contending that Mach Mining engaged in a pattern or practice of unlawful employment discrimination and used employment practices that had a disparate impact on female applicants.
In its Answer, Mach Mining, pled as an affirmative defense that the EEOC failed to fulfill its statutory obligation to conciliate in good faith. The EEOC moved for partial summary judgment on this defense, arguing that the conciliation process is not subject to judicial review. The district court denied the motion and, at the EEOC’s request, certified the case for interlocutory appellate review. The U.S. Court of Appeals for the Seventh Circuit accepted the certified appeal and reversed. It concluded, based on the text of Title VII, the lack of any meaningful standard of review, and the statute’s overall scheme and purposes, that “an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.” The Seventh Circuit’s decision is reported at 738 F.3d 171 (7th Cir. 2013). Mach Mining petitioned for certiorari, which was granted. Oral argument is scheduled for Tuesday, January 13, 2015.
Amici, supporting the EEOC’s position that a court may not review the sufficiency of pre-suit conciliation efforts, wrote separately to provide the perspective of the victims of workplace discrimination. Amici made two arguments not addressed fully by the parties. First, substantive review of conciliation efforts harms the victims of discrimination by violating Title VII’s mandate that conciliation is confidential. The guarantee of confidentiality ensures that the EEOC, charging parties, and employers can engage in full and frank settlement negotiations with the goal of achieving voluntary compliance. Judicial review of conciliation efforts has a chilling effect on negotiations because it reveals the substance of sensitive discussions to the district court and to the public. Charging parties, who are unable to resolve their claims in conciliation, are particularly harmed, because in litigation their claims are heard by judges who may be influenced by settlement communications. Second, even if the Court were to allow some review of pre-suit conciliation efforts, dismissal should not be the remedy upon a showing of inadequacy. This overly harsh consequence unfairly punishes the victims of discrimination. Instead, we assert that the district court should stay the litigation and allow time to complete the conciliation.#7thCircuit #Amicus #Discrimination #EEOC #USSupremeCourt