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.
