Title VII has certain steps that must be taken before a lawsuit can be filed for discrimination. A person complaining of discrimination must first file a claim with the EEOC. If the EEOC dismisses the case, the person can always file in court (we discussed that process in another blog post here). However, if the EEOC finds evidence to support discrimination — the legal term is to make a determination — the EEOC can file a case against the company on behalf of the government and the injured person can generally join the case (a process known as intervening.)
However, Title VII requires the EEOC to attempt to conciliate (settle the claim informally) before filing a lawsuit. According to the Supreme Court, the EEOC is required to communicate with the employer about the illegal employment practice. In that communication the EEOC “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.”
The opinion is actually quite narrow and does not put a large burden on the EEOC at all. Indeed, the Court makes three critical observations: 1) “In discussing a claim with an employer, the EEOC must always insist upon legal compliance”; 2) The EEOC has the freedom to determine how it wants to conduct conciliation; and 3) may sue “whenever [it is] ‘unable to secure’ terms acceptable to the Commission.’” What this really means is that the EEOC has the flexibility to decide how to conciliate and the Court is not to review the reasonableness of the EEOC’s position. The EEOC must demand compliance with the law and the EEOC decides what the employer must do to comply.
The Court does require the EEOC to provide more than just letters indicating that conciliation efforts took place. It requires the EEOC to provide a sworn affidavit that it has complied. And while this should be enough, the opinion also permits the employer to contest that with its own sworn affidavits which would then trigger further investigation by the court in question. However, that investigation is limited to whether the EEOC “provide[d] the requisite information about the charge [and] attempt[ed] to engage in a discussion about conciliating the claim.”
Should the Court find that the EEOC has not complied, the limited remedy is to order the EEOC to engage in conciliation efforts. Thus, this should never result in dismissal of a case, but it does provide employers with another motion to file and another way to stall cases. There is also a concern that some judges may over read the case. Attorneys will be watching how this opinion appears in court actions going forward.
Mach Mining, LLC v. EEOC, 575 U.S. ____ (April 29, 2015)
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