Supreme Benchslap for EEOC

By John Alan Doran

Title VII requires the EEOC to engage in “conciliation” once it issues a cause determination. The EEOC’s unique approach to conciliation, which typically is totally divorced from anything conciliatory, is the subject of this morning’s decision from the U.S. Supreme Court in Mach Mining, LLC v. EEOC, No. 13-1019 (U.S. April 29, 2015). The EEOC issued a cause determination against Mach Mining on behalf of a woman and a class of similarly situated women. The EEOC informed the parties that it would begin the conciliation process, but nothing happened for an entire year. Then the EEOC informed Mach Mining that conciliation efforts had proven unsuccessful. This came as no small surprise to Mach Mining, since it had not been invited to participate in any conciliation of any kind. When the EEOC sued, Mach Mining defended, in part, by arguing that the EEOC was barred from suit because it did not conciliate the claim before bringing suit. The trial court agreed, but the Seventh Circuit reversed.

Before the Supreme Court, the EEOC argued that its conciliation efforts are not subject to scrutiny by courts. Funny thing about our Supreme Court—more times than not, when you tell the Court it can’t review an agency action, it will do precisely that in resounding fashion. Such is the case in Mach Mining. The Court unanimously held that EEOC conciliation efforts are subject to judicial review, albeit narrow. At the very least now, the EEOC’s conciliation duty will require it to disclose the specific allegation and the person or class of persons who have allegedly suffered. This is a sea-change from the EEOC’s typical hide-the-ball (or hide-the-class-members) approach to conciliation and should promote more informal resolutions of cause determinations. Unfortunately, the remedy if the EEOC drags you into court without conciliating, is that the court sends the case back to the EEOC for the full conciliation treatment.