The EEOC’s Minimal Conciliation Obligations

The U.S. Supreme Court recently ruled that before bringing a discrimination lawsuit, the EEOC must first attempt to conciliate the matter with the employer; however, to comply with that obligation, the EEOC need only inform the employer of the specific allegations and try to engage the employer in a discussion over how the employer can remedy the violation. Mach Mining, LLC v. EEOC, 134 S.Ct. 2872 (U.S. April 29, 2015).

Before filing a lawsuit under federal laws prohibiting employment discrimination, a complaining party must file a charge of discrimination with the EEOC. If the EEOC determines, after its investigation, that reasonable cause exists to believe discrimination occurred, Title VII requires the EEOC to “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” 42 U.S.C. § 2000e-5(b).

In Mach Mining, a female applicant filed a charge of discrimination with the EEOC alleging that the employer refused to hire her due to her sex. After investigating the allegation, the EEOC found reasonable cause to believe discrimination had occurred and invited the employer and the applicant to engage in conciliation. Approximately one year later, the EEOC sent the employer a letter stating that conciliation efforts were unsuccessful. Thereafter, the EEOC sued the employer, alleging that its hiring practices constituted sex discrimination.

The employer argued the EEOC’s conciliation efforts were insufficient and, therefore, the EEOC had failed to meet the conditions precedent to filing. In response, the EEOC argued that courts lack the authority to review the adequacy of the EEOC’s conciliation efforts.

The Supreme Court rejected both arguments and adopted a middle ground position. The Court ruled that the judiciary can review whether the EEOC complied with its obligation to attempt to conciliate the dispute, but the review is quite limited. The Court explained that the EEOC will have satisfied its obligations if it: (i) informs the employer about the specific allegation, “as [it] typically does in a letter announcing its determination of ‘reasonable cause,’” and (ii) tries “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 Court added that 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.”

Unfortunately, the Mach Mining decision means that the EEOC needs to do very little in an effort to conciliate a dispute before filing a lawsuit in federal court.