Editor's Note: I know Jon personally and have followed his work for some time. I think it's time to make the Ohio Employer's Law Blog a regular feature of Paradigms and Demographics.
Supreme Court ruling on EEOC conciliation obligations is a Pyrrhic victory for employers - One question that employers always ask upon receipt of an EEOC charge of discrimination is, “How does this process work?” After the EEOC concludes its investigation, it has two basic options. It can conclude that no reasonable cause exists that the employer violated Title VII and dismiss the charge (leaving the employee to file his or her own lawsuit in federal court within 90 days), or conclude that reasonable cause does exist (again leaving the employee to file his or her own lawsuit, or instituting a lawsuit on the employee’s behalf).
Before the EEOC can
file its own discrimination lawsuit against an employer, Title VII requires
that the agency “endeavor to eliminate [the] alleged unlawful employment
practice by informal methods of conference, conciliation, and persuasion.” What
happens, however, if the EEOC fails to conciliate? What is scope of the EEOC’s
conciliation obligation? And does a failure act as a bar to any subsequent
lawsuit filed by the EEOC?
These were the
question the Supreme Court considered in Mach Mining, LLC v. EEOC [pdf]. This is what the
Court unanimously concluded:
1. Courts
have authority to review whether the EEOC has fulfilled its Title VII duty to
attempt conciliation.
2. The
statute only requires the EEOC to notify the employer of the claim and give the
employer an opportunity to discuss the matter. Such notice must describe what
the employer has done and identify the employees (or class of employees) that
have suffered. The EEOC then must try to engage the employer in a discussion to
provide the employer a chance to remedy the allegedly discriminatory practice.
Title VII does not, however, require a good-faith negotiation.
3. The
appropriate scope of judicial review of the EEOC’s conciliation activities is
narrow, enforcing only the EEOC’s statutory obligation to give the employer
notice and an opportunity to achieve voluntary compliance. A sworn affidavit
from the EEOC stating that it has performed these obligations should suffice to
show that it has met the conciliation requirement.
4. Should a
court conclude (based on “concrete evidence” presented by the employer) that
the EEOC did not provide the employer the requisite information about the
charge or attempt to engage in a discussion about conciliating the claim, the
appropriate remedy is to stay the proceedings and issue an order requiring the
EEOC to undertake the mandated conciliation efforts. Dismissal of the lawsuit
is not warranted in these circumstances.
Technically
speaking, you can chalk this case up as a victory for employers, albeit a
narrow one. The Supreme Court refused to hold that Title VII imposes a duty on
the EEOC to negotiation in good faith, and that the agency satisfies its
obligation to conciliate merely by providing notice and an opportunity to
discuss. Moreover, a failure to conciliate doesn’t serve as a jurisdictional
bar to litigation, but merely results in the EEOC being told to “try again,
this time with meaning.”
If nothing else,
this case sends a strong message that courts favor resolution, not litigation.
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