Supreme Court to Hear Possibly Groundbreaking Case on the EEOC’s Obligations to Employers

Megan J. Muoio, July 10, 2014

The Supreme Court has already begun to line up cases for its term that will begin in October 2014. One of the petitions for certiorari (the formal request for Supreme Court appellate review) that the Court has approved recently is Mach Mining, LLC v. Equal Employment Opportunity Commission. The Court’s review will focus on the law regarding the steps the EEOC must take before filing a lawsuit in federal court against an employer. The case, which comes to the Supreme Court on appeal from the Seventh Circuit Court of Appeals, concerns the EEOC’s obligations under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.

When an individual files a charge with the EEOC claiming that an employer has engaged in an unlawful employment practice, such as terminating an employee on the basis of race or denying an employee the right to a promotion because of the employee’s gender, the EEOC has several legal obligations under Title VII. First, the EEOC must serve notice of the charge to the employer and must investigate the charge within ten days of service. If, after the investigation, the EEOC reasonably believes that the charge is true, then Title VII states that the EEOC should “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” If the EEOC is unable to obtain a conciliation agreement from the employer, it may bring a civil action against the employer. The conciliation policy is an effort to attempt to resolve claims under Title VII without litigation. The cases where the EEOC ultimately brings a civil action against an employer are extremely rare, so the eventual decision by the Supreme Court may ultimately affect only a few hundred cases per year.

In Mach Mining, the Seventh Circuit held that the failure of the EEOC to conciliate with the employer was not a valid affirmative defense to a claim of employment discrimination and refused to permit district courts within the Seventh Circuit to make any inquiry into the conciliation process to determine whether the EEOC’s efforts had been sufficient under Title VII. This decision is at odds with the decision of several other Circuit Courts.

The Fourth, Sixth, and Tenth Circuit Courts permit employers to assert the affirmative defense and allow the EEOC to rebut the defense by showing that its conciliation efforts were made with a minimum level of good faith. These Circuits require the EEOC to show that it has made a genuine effort at conciliation. Some instances where the EEOC’s conciliation efforts were found not to have been made in good faith includes cases in which the EEOC did not give the employer a reasonable time to respond to an offer, or where the EEOC attempted to conciliate claims regarding only race discrimination but brought an action regarding sex discrimination as well.

Meanwhile, the Second, Fifth, and Eleventh Circuit Courts require the EEOC to meet a three-part test to determine whether its conciliation efforts were sufficient. Those Circuit Courts require the EEOC to: (1) outline to the employer the reasonable cause for its belief that Title VII has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. This standard would prohibit the EEOC from making a take-it-or-leave-it offer to the employer and then rushing to file a civil action right away. These Courts make a more structured inquiry into the conciliation process, and require that the EEOC provide the employer with sufficient information to be able to evaluate the potential claims against it and the conciliation offer with due deliberation.

However, the Seventh Circuit disagreed with both of these approaches by prohibiting any inquiry into the conciliation process and denying the employer the right to use the lack of conciliation as an affirmative defense to the claims brought by the EEOC. This ruling tilts the balance of power in cases between employers and the EEOC strongly in favor of the EEOC and in effect relieves the EEOC of its conciliation obligations under Title VII.   Employers who are concerned with the lack of information provided by the EEOC during the conciliation process and what they perceive as the EEOC’s rush to litigation are hoping that the Supreme Court will reverse the Seventh Circuit’s decision. If the Supreme Court reverses the Seventh Circuit and permits employers to defeat a lawsuit brought by the EEOC because the EEOC did not fulfill its conciliation obligations, employers will retain a powerful weapon against increased litigation.