By Joe Leibovich
The Supreme Court in a unanimous decision this week struck a blow to the Equal Employment Opportunity Commission’s ability to file lawsuits against employers without trying in good faith to work out the issues first.
The EEOC is the federal agency that enforces the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. Under Title VII, if the EEOC investigates a charge of discrimination and finds reasonable cause to pursue it, the agency must make efforts to remedy the alleged discrimination through an informal conciliation process prior to filing a lawsuit in federal court.
In Mach Mining, LLC v. EEOC, a woman claimed she had not been hired as a coal miner due to her gender. She filed a charge with the EEOC, and the agency determined that the employer had discriminated against the individual and women in general. The EEOC did send a letter to the company and the complainant inviting them to conciliate. The record does not indicate what happened next, but about a year later the EEOC advised Mach Mining that conciliation efforts had been attempted and were unsuccessful, and the EEOC filed suit.
Mach Mining contended that the EEOC had not properly attempted conciliation efforts as required by Title VII. The trial court requested the opportunity to review the efforts to conciliate. The EEOC was allowed to take up an immediate appeal as to whether or not judicial review is proper. The Seventh Circuit held it was not. The Supreme Court, however, disagreed.
Justice Kagen’s opinion holds that a court can review the EEOC’s conciliation efforts. She stated “Absent such review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result.”
The opinion also set forth the level of review that is appropriate, and did so narrowly. The Court had to take into account the fact that conciliation efforts are protected by confidentiality. Thus, the Court held that:
1. The EEOC must inform the employer about the specific allegation, such as through a “Reasonable Cause” letter;
2. The Notice must describe what the employer did and which employees (or classes of employees) have suffered as a result; and
3; The EEOC must try to engage the employer in some form of discussion in an effort to give the employer a chance to remedy the alleged discriminatory practice.
The opinion states that a court should not go beyond this bare bones review to determine whether or not the EEOC complied with its conciliation obligations.
The Mach Mining decision is helpful to employers as it should afford them a genuine opportunity to address alleged discriminatory practices prior to the EEOC filing a lawsuit against them. Nothing in this opinion affects an individual’s right to file a suit after receiving a Dismissal and Notice of Rights letter from the EEOC. So, although this opinion only applies in certain Title VII lawsuits, it is one that can help limit lawsuits by the EEOC where an employer has truly not been given the opportunity to remedy a problem.
Interestingly in light of this week’s grand opening of the Bass Pro Shop in the Pyramid in Downtown Memphis, this was an issue in a lawsuit by the EEOC against that company. In 2011, the EEOC filed a lawsuit against Bass Pro alleging race discrimination. In that case, Bass Pro argued that the lawsuit should be dismissed as it claimed the EEOC did not give it a proper opportunity to conciliate the case. A federal judge in Texas ultimately did review the conciliation efforts and determined that the EEOC had not acted unreasonably or arbitrarily, and, therefore the court refused to dismiss the lawsuit. The issue is now on appeal to the Fifth Circuit.