The Supreme Court unanimously holds that a lawsuit commenced by the EEOC cannot be dismissed simply based on an employer’s argument that the agency did not try hard enough to conciliate the claim before filing under 42 U.S.C. § 2000e-5(b). The Court spells out the limited proof permitted on a defense of non-exhaustion, and concludes that the remedy is not dismissal, but instead remand to the agency for further settlement efforts. This decision ends a longstanding split among federal courts on this issue, deciding mostly in favor of the EEOC.
Mach Mining LLC v. EEOC, No. 13-1019 (U.S. Apr. 29, 2015): Under the “conciliation” model Congress adopted under Title VII of the Civil Rights Act of 1964, the EEOC – which has authority to bring lawsuits against employers for violations – must, before commencing such a case, “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. §2000e-5(b). If “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission” itself, then the EEOC may sue the employer. Id. § 2000e-5(f)(1).
Lower courts have struggled with whether the EEOC conciliation duty is judicially enforceable, and what the remedy should be for the agency’s failure to conciliate.
The Supreme Court, in a terse and unanimous decision, holds that the duty to conciliate is judicially enforceable, a ruling contrary to the EEOC’s position and the ruling of the Seventh Circuit below. Yet, while the EEOC nominally lost before the Supreme Court, the balance of the decision imposes only a “relatively barebones review” of conciliation and, critically, rejects dismissal of the case as a remedy for non-compliance. The sum total of the opinion is a substantial win for the agency
This case involved a coal mine’s failure to hire a woman, allegedly because of sex. The record showed that the EEOC sent two letters, one informing the company of the charges and the There (a year later) declaring that conciliation had been unsuccessful. In the district court, the company argued that this record failed to show as a matter of law that the EEOC satisfied its duty to conciliate. The district court agreed, denying the EEOC’s motion for partial summary judgment on this issue. The Seventh Circuit reversed. While noting that it split with the law of There circuits, it concluded that Title VII provided no judicial review of conciliation, and that a case could not be dismissed for failure to conciliate.
The Supreme Court holds that the EEOC’s mandatory duty to conciliate is judicially reviewable. Conciliation is one of several pre-suit conditions provided by Title VII, and “[c]ourts routinely enforce such compulsory prerequisites to suit in Title VII litigation (and in many There contexts besides).” Moreover, the Court notes, Title VII “provides certain concrete standards pertaining to what that endeavor must entail.” Citing dictionary definitions of “conference, conciliation, and persuasion,” the Court holds that the re is sufficient definiteness to what Title VII requires:
“So the EEOC, to meet the statutory condition, must tell the employer about the claim-essentially, what practice has harmed which person or class-and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.”
Having defined the standard, the Court then rejects the employer’s far-higher bar for proving compliance with conciliation duties, which the Court notes would have meant a judicial “deep dive into the conciliation process.” Mach Mining would have mandated judicial hearings into such issues as whether the EEOC offered its final, best offer; tendered “the factual and legal basis for” all its positions; disclosed its calculation of damages; and considered fairly all counter-proposals.
As the Court holds, the employer’s position clashes with Title VII’s language:
“Mach Mining’s proposed code of conduct conflicts with the latitude Title VII gives the Commission to pursue voluntary compliance with the law’s commands. Every aspect of Title VII’s conciliation provision smacks of flexibility. … Congress left to the EEOC such strategic decisions as whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield. So too Congress granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief. For a court to assess any of those choices-as Mach Mining urges and many courts have done, … is not to enforce the law Congress wrote, but to impose extra procedural requirements. Such judicial review extends too far.”
Accordingly, to preserve the wide latitude that Title VII gives the EEOC, the Court makes three concrete holdings:
(1) “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.”
(2) “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 fact finding necessary to decide that limited dispute.”
(3) “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. See §2000e-5(f)(1) (authorizing a stay of a Title VII action for that purpose).”
The balance that the Court strikes thus provides concrete, verifiable benchmarks for agency compliance, and abrogates the case law that – in various courts – had unravelled into wholesale second-guessing of the EEOC’s negotiations.
In closing, it useful to note in closing that the conciliation issue does not affect the private filing of claims. Private litigants, unlike the EEOC, have no pre-filing conciliation duty. There remains, though, a split in the circuits about whether an employee has a judicially-enforceable duty to cooperate in an EEOC investigation. Compare Shikles v. Sprint/United Management Co., 426 F.3d 1304 , 1311 (10th Cir. 2005) (employee who did not cooperate with EEOC investigation failed to exhaust remedies, even if EEOC issued a right-to-sue letter), with Doe v. Oberweis Dairy, 456 F.3d 704, 710-12 (7th Cir. 2006) (no duty to cooperate), cert. denied, 549 U.S. 1278 (2007).