Thursday, April 30, 2015

Unanimous Supreme Court Approves Limited Review of EEOC Conciliation Efforts

Yesterday, a unanimous Supreme Court held that the mandatory conciliation efforts required by Title VII before the EEOC files any lawsuit is subject to narrow federal court review.  Mach Mining v. EEOC, No. 13-1019 (U.S. 4-29-15).   However, because the discussions held during conciliation process are confidential and the EEOC has “extensive discretion to determine the kind and amount of communication with an employer is appropriate in any given case,” the court’s review is very limited and typically can be satisfied by an affidavit that the EEOC has described to the employer in the reasonable cause determination letter the alleged discrimination it has perpetuated and who has been harmed and that the employer had been given an opportunity to remedy the alleged discriminatory practice before the suit was filed.   Nonetheless, if the employer disputes that it had been sufficiently informed or given an opportunity to conciliate, the court may engage in limited factfinding.  In any event, the remedy for inadequate conciliation is only to order the EEOC to engage in conciliation.

According to the Court’s opinion, a woman filed a Charge alleging that the defendant employer had not hired her on account of her sex.  The EEOC conducted an investigation and concluded that reasonable cause existed that the employer had discriminated against her and a class of other female applicants.   In announcing its decision, the EEOC invited the parties to engage in informal dispute resolution and promised that an EEOC employee would soon contact them to begin the conciliation process. About a year later, the employer received a letter announcing that conciliation had failed and further efforts would be futile. The EEOC then filed suit.  In response, the employer asserted in its Answer that the EEOC had failed to satisfy the requirement that it first attempt to conciliate the dispute in good faith before filing suit.  When the EEOC moved for summary judgment, it argued that the court could only inspect the two letters sent to the employer, but the employer prevailed in arguing that the court should consider whether the EEOC engaged in sincere and reasonable efforts to conciliate.  On appeal, the Seventh Circuit reversed, finding no review or only cursory review was permitted. The Supreme Court reversed again.
Under Title VII, if during the EEOC’s investigation of a Charge of Discrimination, it determines that reasonable cause exists that unlawful discrimination occurred, it may file suit to eliminate and remedy the discriminatory practice.  However,
 it must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” §2000e–5(b). To ensure candor in those discussions, the statute limits the disclosure and use of the participants’ statements: “Noth­ing said or done during and as a part of such informal endeavors” may be publicized by the Commission or “used as evidence in a subsequent proceeding without the writ­ten consent of the persons concerned.” Ibid. The statute leaves to the EEOC the ultimate decision whether to accept a settlement or instead to bring a lawsuit. So longas “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission” itself, the EEOC may sue the employer. §2000e–5(f)(1). [underlining added for emphasis).
The Court rejected the EEOC’s argument that the conciliation process was not subject to any judicial review because there is a rebuttal presumption that all agency actions are subject to judicial review.   In stronger terms, judicial review “is the norm.”  While Title VII gives the EEOC “abundant” discretion, that discretion merely limits the scope of review, not the fact of review.   The mandatory conciliation actions
neces­sarily involve communication between parties, including the exchange of information and views. . . . That communication, moreover, concerns a particular thing: the “alleged unlawful employment practice.” 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. See also infra, at 13. If the Commission does not take those specified ac­tions, it has not satisfied Title VII’s requirement to at­tempt conciliation.
As for the scope of the judicial review, the Court rejected the employer’s argument that the conciliation process should be similar to the good faith bargaining process in the  union context and rejected the EEOC’s argument that only certain documents – such as the two letters sent to the defendant employer – could be reviewed.
 . . . But review of that kind falls short of what Title VII demands because the EEOC’s bookend letters fail to prove what the Government claims. Contrary to its intimation, those letters do not themselves fulfill the conciliation condition: The first declares only that the process will start soon, and the second only that it has concluded. The two letters, to be sure, may provide indirect evidence that conciliation efforts happened in the interim; the later one expressly represents as much. But suppose an employer contests that statement. Let us say the employer files an affidavit alleging that although the EEOC promised to make contact, it in fact did not. In that circumstance, to treat the letters as sufficient—to take them at face value, as the Government wants—is simply to accept the EEOC’s say-so that it complied with the law. And as earlier ex­plained, the point of judicial review is instead to verify the EEOC’s say-so—that is, to determine that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge. should be examined.
   . . . .
To begin, however, we reject any analogy between the NLRA and Title VII. The NLRA is about process and process alone. It creates a sphere of bargaining—in which both sides have a mutual obligation to deal fairly—without expressing any preference as to the substantive agreements the parties should reach. See §§151, 158(d).By contrast, Title VII ultimately cares about substantive results, while eschewing any reciprocal duties of good-faith negotiation. Its conciliation provision explicitly serves a substantive mission: to “eliminate” unlawful discrimination from the workplace. 42 U. S. C. §2000e– 5(b). In discussing a claim with an employer, the EEOC must always insist upon legal compliance; and the em­ployer, for its part, has no duty at all to confer or exchange proposals, but only to refrain from any discrimination. Those differences make judicial review of the NLRA’s duty of good-faith bargaining a poor model for review of Title VII’s conciliation requirement.
In addition, Title VII gives the EEOC wide flexibility.  It need only “endeavor” to “informally” conciliate.  Moreover, a NLRB-type review would violate the confidentiality rules which govern conciliation.
In practice, the EEOC typically satisfies its obligation to give notice to the employer of the allegations in the reasonable cause determination letter. After that,
the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory prac­tice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct concil­iation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provi­sion, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what hap­pened (i.e., statements made or positions taken) during those discussions.
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. . . . 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 factfinding necessary to decide that limited dispute.  . . . 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.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.