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By: Bill Buechner
The United States Supreme Court held oral argument in January regarding whether the EEOC’s decision to file a lawsuit rather than continue the conciliation process is subject to judicial review, and if so, what the standard of review should be.
At issue is Title VII’s requirement that, if the EEOC determines that there is a reasonable basis to believe that unlawful discrimination has occurred, it must “endeavor to eliminate any such alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). Title VII’s enforcement scheme provides that the EEOC may file a lawsuit only if the EEOC has been “unable” to secure from the employer a conciliation agreement that is “acceptable” to the EEOC. 42 U.S.C. § 2000e-5(f)(1).
Employers have suspected that, in certain cases, the EEOC is not genuinely attempting to conciliate a charge, but rather would prefer to file a lawsuit for strategic reasons or to advance policy goals. This is especially true given the EEOC’s stated emphasis in recent years on pursuing class action lawsuits and lawsuits involving allegations of systemic discrimination.
Most circuits (including the Eleventh Circuit and the Ninth Circuit) have held that federal courts have the authority to review whether the EEOC has satisfied its statutory duty to conciliate a charge before filing a lawsuit. These circuits have disagreed, however, as to what level of review to apply. Some circuits (including the Eleventh Circuit) have applied a more rigorous level of review to ascertain whether the EEOC has engaged in legitimate negotiations with the employer, whereas other circuits have applied a more deferential standard of review that simply requires the EEOC to show that the employer rejected its initial conciliation demand. The Supreme Court is reviewing a 2013 Seventh Circuit decision, which held that federal courts do not have the authority to review at all whether the EEOC has satisfied its duty to conciliate before filing a lawsuit. Mach Mining v. Equal Employment Opportunity Commission, Case No. 13-1019.
During oral argument (see transcript here), several justices expressed skepticism with the EEOC’s position that its conciliation efforts should not be subject to judicial review. However, the justices appeared to be struggling with what standard of review to apply. Some justices expressed reluctance with applying a standard of review that is too searching, given the discretion Title VII gives to the EEOC with respect to the conciliation process. Of course, one cannot make predictions as to how the Court might rule based on comments or questions posed by the justices during oral argument. The Court will issue its ruling by the end of June.
Employers should keep in mind that an employer’s successful assertion of a failure to conciliate defense may only temporarily delay an EEOC lawsuit while the EEOC satisfies its statutory duty to conciliate. On the other hand, a failure to conciliate defense may be more significant where the EEOC is seeking to bring a class action lawsuit.