Thursday, May 14, 2015

U.S. Supreme Court Rules that Courts, Not EEOC, Decide Whether the EEOC Satisfied its Legal Obligation to Attempt to Resolve Alleged Unlawful Employment Practices Prior to Filing a Lawsuit

May 2015
By: James B. Sherman, Esq.

On April 29 the Supreme Court ruled in Mach Mining, LLC v. EEOC, that the Equal Employment Opportunity Commission (EEOC) cannot police its own compliance with statutory requirements that it “conciliate” its investigative findings before it can sue employers in court.  Mach Mining involved an employer’s appeal of a very unfavorable ruling by the Seventh Circuit Court of Appeals in Chicago, which held essentially that the EEOC answers to no one in regards to whether it has satisfied its statutory obligation to explore informal resolution of claims with employers.  The Supreme Court’s decision to review this matter created great anticipation among employment attorneys and employers alike, hoping for a more favorable outcome.  Employers unfortunate enough to have found themselves pursued by the EEOC routinely find that little effort is made to avoid litigation, especially in what the agency designates as “priority cases.”  Ultimately, the Supreme Court reversed the appellate court and held that whether the EEOC has satisfied its mandate to conciliate before it litigates, is a matter for the courts and not the EEOC to decide.  While this was welcome news to employers and their legal counsel, it is tempered by the Court’s conclusion that the EEOC’s conciliation efforts are subject only to very limited review by the courts. 

The underlying facts in Mach Mining involved a woman who filed a charge with the EEOC claiming that she was not hired as a coal miner because of her sex.  After conducting an investigation, the EEOC determined that there was substantial evidence to conclude that the employer illegally discriminated against the woman and other female applicants on the basis of their sex.  The EEOC sent a letter to the employer informing it of this determination and stated that it would begin conciliation.  Approximately a year later, the EEOC sent another letter stating that conciliation was unsuccessful, and filed suit against the employer.  The Court’s decision does not state what, if anything, happened in the time between the two letters, but the employer asserted that the EEOC did not fulfill its obligation to attempt to resolve the matter before filing its lawsuit. 

Conciliation involves attempts to resolve employment claims through “informal methods” prior to resorting to litigation.  Title VII of the Civil Rights Act, which prohibits workplace discrimination and harassment on the basis of race, sex, religion, etc., as well as the ADA (disability) and ADEA (age), all contain the same mandate that when an EEOC investigation results in a finding of “substantial evidence” that a violation has occurred, the EEOC must not initiate a lawsuit until after it first conciliates with the employer in an effort to resolve the matter short of litigation.  The statutory language clearly indicates that Congress wanted the EEOC to resort to litigation as a last resort, only after first trying to resolve cases through informal means.  Although the Court held that the EEOC does not have the final word on whether or not it has fulfilled its duty to conciliate, judicial review will be extremely limited: The EEOC must inform the employer about the specific allegation, describing what the employer has allegedly done and what employee or class of employees have suffered as a result (this will generally be covered in the letter announcing that it found reasonable cause).  Additionally, the EEOC must try to engage the employer in some form of conversation to give the employer an opportunity to remedy the alleged wrong.  An affidavit from the EEOC stating that it did both of these and it was unsuccessful will generally be sufficient to show that it fulfilled its obligation to conciliate, and a court’s review is limited to determining whether these two things happened—it will not go into the substance of any conversations.

Many employers and their lawyers argue that today the EEOC has become much more litigious than in the past, as well as more aggressive in pursuing claims to court with more creative legal theories.  Is it possible now that it knows its behavior is subject to judicial scrutiny the EEOC will be ever so slightly more reasonable in conciliating claims with employers?  Time will tell.

Questions? Please contact James B. Sherman at (952) 746-1700 or

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