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Supreme Court Rules That Courts May Review Whether The EEOC Has Satisfied Its Duty To Attempt Presuit Conciliation

On April 29, 2015, the Supreme Court unanimously vacated a Seventh Circuit decision holding that courts cannot delve into whether the EEOC satisfied the conciliation requirement of Title VII. The EEOC has a legal duty to try settling cases first, but the question before the Court was how much a court could peer into those negotiations to ensure that the EEOC acted in good faith. Ruling against the agency, the Court gave employers a new, albeit limited, legal tool in fighting suits by the EEOC.  Mach Mining v. EEOC, No. 13-1019 (Apr. 29, 2015).

Mach Mining involved an employer that was accused of discriminating against female applicants. Allegedly, the company had never hired a female miner. After getting sued by the EEOC, Mach Mining argued that the EEOC failed to engage in the “informal methods of conference, conciliation, and persuasion” required by Title VII.

Before the Court, the agency argued that courts should have no role in probing confidential settlement talks. Mach Mining called for an expansive review. Writing the opinion, Justice Kagan adopted a middle ground. She wrote the scope of judicial review is limited in deference to the “expansive discretion” the law gives to the EEOC over settlement talks. However, in response to the Seventh Circuit’s holding that it is within the EEOC’s “expert judgment” whether it complied with law, Justice Kagan wrote that Congress rarely expects courts to step away from enforcing directives contained in federal laws. Unless statutes clearly state an agency has the power to police itself, there is a strong presumption otherwise.

But, there is no reason for employers to be too overjoyed at the decision: their relief is limited. As Justice Kagan stated, court review will be “relatively barebones,” primarily ensuring that employers are notified of complaints and given an opportunity to achieve voluntary compliance. A sworn affidavit from the EEOC will likely suffice to fulfill this obligation. Even if the EEOC fails to meet its obligation, the remedy is to stay the proceeding while the Commission fulfills its obligation to conciliate. Thus, the bar is set fairly low for the agency.

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