The U.S. Supreme Court decided that conciliation efforts by the Equal Employment Opportunity Commission (“EEOC”) are subject to judicial review, but that review is limited.  Judicial review occurs when an employer, who has been charged with committing an unlawful employment practice, asserts that the EEOC failed to engage in discussions with the employer to remedy the alleged unlawful practice before filing suit.  A court may only decide whether the EEOC—within its broad discretion—complied with the law.

The Case

In Mach Mining, LLC v. EEOC, 575 U.S. __ (2015), a Charge was filed with the EEOC claiming that Mach Mining refused to hire Charging Party as a coal miner because of her sex.  The EEOC investigated and found reasonable cause to believe that the discrimination occurred.  The EEOC then sent two letters to Mach Mining.  The first invited the company and the complainant to participate in “informal methods” of dispute resolution and noting that the EEOC’s representative would contact the Respondent to discuss further.  However, no such contact occurred, and a year later, the EEOC informed the company by letter that conciliation efforts had been unsuccessful.

The EEOC then filed suit in federal court against Mach Mining alleging discrimination in hiring in violation of Title VII of the Civil Rights Act of 1964.  Mach Mining responded that the EEOC failed to engage in good faith conciliation efforts.  The EEOC flatly replied that its “conciliation efforts are not subject to judicial review.”  In a unanimous opinion, the Supreme Court disagreed with the EEOC while also striking a necessary balance between those two views.

The Outcome

The Supreme Court decided that EEOC conciliation efforts are subject to judicial review.  The EEOC must provide notice to the employer that describes “both what the employer has done and which employees (or what class of employees) have suffered as a result.  And 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.”  The scope of the judicial review of the EEOC’s conciliation actions is narrow:  the reviewing court must confirm that the EEOC gave the employer notice and an opportunity to comply voluntarily, but it will not assess the reasonableness of the efforts.

Limited review also protects confidentiality during conciliation discussions.  Courts will decide only whether the EEOC attempted to confer about a Charge and will not engage in what happened or what was said during those discussions.

To learn more about this decision, or if you have any questions about any of the issues discussed in this alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.