Under what circumstances may a court scrutinize the EEOC’s claim that conciliation has failed? The Supreme Court recently heard oral arguments in Mach Mining v. EEOC to address this precise issue. No. 13-1019 (Jan. 13, 2015).
Although the vast majority of employment discrimination claims each year are brought by private parties, the EEOC possesses authority under Title VII to sue employers on behalf of an aggrieved employee(s), but only after satisfying certain preconditions.
Section 706(b) requires the EEOC first to determine whether reasonable cause exists to support the charge of discrimination, at which point “the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). The EEOC is then permitted to bring suit 30 days after filing a Charge against the employer in the event that it “has been unable to secure from the respondent [i.e., the employer] a conciliation agreement acceptable to the Commission.” 42 U.S.C. § 2000e-5(f)(1).
This latter provision presents a problem of circular reasoning: a conciliation agreement is only acceptable to the EEOC when the EEOC says that it is acceptable. What if, as Mach Mining has contested, the agency makes no real effort to reach a resolution in conciliation? For example, suppose the EEOC issues a charge to the employer and a letter requesting that the employer contact the agency to discuss the case. The phone then falls suspiciously silent, despite the employer’s best efforts, and 30 days later, the agency files a lawsuit. Can a bad-faith failure to reach a conciliation agreement be considered unacceptable to a court? The issue has proved confounding to circuit courts; as Justice Sotomayor noted, no more than two have approached the issue the same way.
On one hand, as Justice Ginsburg noted, unlike the collective bargaining context, the Title VII conciliation process imposes unilateral duties on the agency (to seek conciliation) without a corresponding demand on the employer against whom the charge is filed. Therefore, the argument goes, the agency’s unilateral obligations should be accompanied by its unilateral discretion. Moreover, allowing extensive judicial review threatens to undermine meritorious cases by incentivizing protracted collateral litigation rather than deciding the underlying discrimination claims.
On the other hand, as Justice Scalia pointed out, the enhanced media attention that EEOC-filed lawsuits garner creates real incentives for the agency not to reach agreement during the conciliation process. These incentives are particularly real in light of the facts that (i) the conciliation process itself is generally confidential; and (ii) due to resource constraints, the agency only brings between 100-200 lawsuits nationally each year.
Both Mach Mining and the government agreed that the EEOC possesses enormous discretion. Mach Mining asked the Court at the outset to permit a judicial “modest inquiry” (without defining the contours of that inquiry) into the conciliation process. Alternatively, Mach Mining requested that the Court remand the matter and require the EEOC to issue intervening regulations, a proposal that drew support from Justice Scalia. The government has argued, however, that the EEOC has limitless discretion, a proposal that drew concern from both Justice Kennedy and Chief Justice Roberts. As the Chief Justice eloquently stated, “I am very troubled by the idea that the government can do something and we can’t even look at whether they’ve complied with the law. I’m not terribly troubled by the idea that the scope of our judicial review is limited.”
To the extent that precedent supported either side, Justice Breyer invoked the Court’s recent decision in United States v. Clarke, ___ U.S. ___, 134 S. Ct. 2361 (2014), in which it concluded that, absent unusual circumstances supporting a finding of bad faith, a court should defer to the summons filed by an IRS agent. Applying that principle here, Justice Breyer would defer to the EEOC as long as it submitted an affidavit stating broadly that it attempted to conciliate its charge with the employer and that conciliation was unsuccessful. Given the divide among both the circuit courts and the Justices themselves, however, it is difficult to anticipate precisely how the issue will be resolved.
Additional coverage of this case, including links to the briefs of the parties and amici, can be found at SCOTUSblog.