Supreme Court to Consider if Courts Can Review EEOC Conciliation Efforts
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Supreme Court to Consider if Courts Can Review EEOC Conciliation Efforts

By Joanne Deschenaux  7/1/2014
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The U.S. Supreme Court agreed June 30, 2014, to decide whether courts may review the Equal Employment Opportunity Commission's (EEOC) pre-lawsuit efforts to settle bias charges under Title VII of the 1964 Civil Rights Act (Mach Mining, LLC v. EEOC, No. 13-1019).

The justices will review a decision of the 7th U.S. Circuit Court of Appeals, which held that the EEOC's efforts to conciliate discrimination charges on which the agency has found probable cause are not subject to judicial review. The appellate court reached this conclusion based on the language and purpose of Title VII and the lack of a final agency action under the Administrative Procedure Act.

Mach Mining LLC, an Illinois employer, asked the Supreme Court to step in because the appellate court's decision created a federal circuit split on whether courts may review the EEOC's conciliation efforts. The 7th Circuit is the only federal appeals court to rule that Title VII permits no judicial review. Every other circuit to address the issue concluded that the EEOC's efforts are subject to judicial scrutiny, and most have required the EEOC to prove good-faith efforts to settle, Mach Mining said.

In a brief submitted for the EEOC, the U.S. solicitor general also supported high court review, saying the justices should resolve an important issue affecting the agency's enforcement of Title VII.

Seventh Circuit Stands Alone

Under Title VII, if the EEOC finds reasonable cause to believe a private employer has discriminated, the agency “shall endeavor to eliminate” any alleged unlawful employment practice “by informal means of conference, conciliation, and persuasion.”

The EEOC cannot sue under Title VII unless, within a specified period, it is unable to obtain from the employer “a conciliation agreement acceptable to the commission,” the statute says.

Based on a charge filed by a woman denied a job as a miner, the EEOC sued Mach Mining for an alleged “pattern or practice” of sex discrimination against female applicants seeking positions at its Johnston City, Ill., coal mine. In defending the suit, Mach Mining claimed that the EEOC had failed to make good-faith efforts to conciliate the charge.

 A federal district court said Mach Mining could defend against the suit by using the argument that the EEOC hadn't met its statutory obligation to attempt settlement before filing suit.

However, on appeal, the 7th Circuit said that Title VII commits the conciliation process to the EEOC's discretion, and a court lacks the power to review the agency's conciliation efforts. It ruled that the EEOC's alleged failure to conciliate in good faith could not serve as a defense to a bias claim.

The 7th Circuit was aware of the conflicting authority but expressly declined to follow the other federal circuits, creating an “intractable conflict” that only the Supreme Court can resolve, Mach Mining said.

Courts Split as to Appropriate Level of Scrutiny

The federal circuits also are split on what level of judicial scrutiny applies when they review the EEOC's conciliation efforts. The 4th, 6th and 10th circuits ask whether the EEOC has acted in “good faith” or “reasonably” in attempting to settle the charge, Mach Mining said.

Those circuits require the EEOC to “make a genuine effort to conciliate” charges before going to court and say that district courts should determine only whether the EEOC “made an attempt” at conciliation. They also say that the agency has no duty to try further conciliation after a respondent employer rejects an EEOC settlement offer.

To the contrary, the 2nd, 5th and 11th circuits have said that in order to show good faith, the EEOC must satisfy a three-part test, Mach Mining said: The EEOC must outline to the employer the reasonable cause for the agency's belief the employer has violated Title VII, offer an opportunity for voluntary compliance, and respond in a “reasonable and flexible manner” to the employer's reasonable attitudes. The EEOC can't “simply present a conciliation demand, and then sue if the offer is rejected,” these circuits say.  Instead, the EEOC “must engage in a reasonable give and take with the employer,” Mach Mining said.

The U.S. Chamber of Commerce, the Retail Litigation Center and the National Federation of Independent Business filed a joint friend-of-the-court brief also urging Supreme Court review.

 EEOC Agrees Review Is Necessary

In its brief for the EEOC, the solicitor general said that the 7th Circuit correctly decided that Title VII's “informal” conciliation process is “entrusted” to the EEOC and the agency's “alleged failure to expend sufficient conciliation efforts” is not a defense to a discrimination claim.

But the solicitor general said the case also “presents a recurring question of substantial importance” on which the federal appeals courts disagree. The circuit splits on whether the EEOC's conciliations efforts are reviewable and what standard applies are unlikely to be resolved without Supreme Court intervention

The disagreement among the circuit courts places the EEOC in “an untenable position,” the solicitor general said. The justices should grant review and hold that Title VII includes no implied failure-to-conciliate affirmative defense, the solicitor general said.

The case will be heard in the 2014-15 term, which begins in October.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.


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