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Not So Fast My Friend!: Supreme Court Checks EEOC By Requiring Meaningful Conciliation Efforts

By: Nancy Rafuse and J. Stan Hill

In Mach Mining, LLC v. EEOC, No. 13-1019, 575 U.S. ____ (2015), the United States Supreme Court ruled that the Equal Employment Opportunity Commission’s pre-suit obligation to attempt to conciliate alleged unlawful workplace practices is subject to judicial review.  When credible evidence suggests that the EEOC has failed to comply with its statutory conciliation obligations, courts are empowered to stay any litigation filed by the EEOC until the EEOC attempts conciliation.  The Mach Mining ruling confirms that any exercise of the EEOC’s expansive powers to investigate and litigate against employers must fall within the express statutory limits.

Rejecting the EEOC’s position that its conciliation actions are not subject to judicial review, Justice Kagan’s unanimous opinion held that the conciliation process “necessarily involves communication between the parties, the exchange of information and views.”  At a minimum, the EEOC must:

  • tell the employer about the claim, essentially what practice has harmed which person or class; and
  • provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.

The Mach Mining decision underscores that there is “a strong presumption” favoring judicial review of administrative action.  Just this term, we have seen the Supreme Court interpret and reject the Government’s position that DHS regulations are “the law” in Department of Homeland Security v. MacLean,  reaffirm the distinction between legislative and interpretive DOL rules in Perez v. Mortgage Bankers, and cast doubt on the EEOC’s Guidelines for Pregnancy Discrimination in Young  v. UPS.   

  The Mach Mining conciliation requirement may benefit employers in several ways.  First, it underscores the importance of confidentiality when employers negotiate with the EEOC and charging party, in an attempt to resolve the dispute without public or costly litigation.   The Court addressed the need for the parties to rely on the non-disclosure provisions of the statute to promote candor in settlement discussions, and noted that conversely that “minimum results will be achieved if a party can hope to use accounts of the discussions to derail or delay” the matter.

Second, the employer can obtain information about the claim from the EEOC and charging party during conciliation.  Although “[n]othing said or done during” conciliation may be used as evidence in a subsequent proceeding, such information can be helpful when assessing risk and determining whether and how to litigate. 

Third, if the EEOC’s conciliation efforts are essentially nonexistent, the employer may move to stay the litigation.   To that end, an employer may consider filing a motion to stay an EEOC lawsuit pleading a “pattern or practice” claim implicating a group of employees where the EEOC attempted conciliation of only individual claims.

More broadly, Mach Mining teaches that the EEOC’s expansive powers to investigate and litigate are not limitless and are subject to review.  Those limits are defined by statute and the allegations made in the charge of discrimination.