EEOC must take conciliation seriously under Title VII

This unanimous decision from the Supreme Court rules for the first time that courts may second-guess the EEOC's enforcement efforts in trying to resolve employment discrimination cases before they become lawsuits.

The case is Mach Mining, LLC v. Equal Employment Opportunity Commission, decided on April 29. Before you can sue under Title VII, the Age Discrimination in Employment Act and other discrimination laws, you have to first file a charge with the EEOC, which conducts an investigation. If the EEOC thinks there is a case, it can file a lawsuit against the employer, but it must first try to conciliate the dispute. What if the EEOC goes to court without trying to conciliate in good faith?

One answer to that question was that the EEOC's conciliation efforts are not reviewable in Court., That is what the Seventh Circuit thought. The Supreme Court disagrees. Most agency decisionmaking is reviewable in some form or another. The EEOC cannot escape judicial scrutiny. But that judicial scrutiny is limited. Here is how Justice Kagan sums it up:

The EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause.”Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.

Litigation-wise, here is how the dispute shakes out. "A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement. ... If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute. Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance."