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In a victory for employers, the U.S. Supreme Court held on April 29, 2015 that courts do in fact have the authority to review whether the EEOC satisfied its statutory obligation to attempt conciliation.  However, the Court did note that such review is narrow.

Before suing an employer for discrimination, the Equal Employment Opportunity Commission (“EEOC”) must try to remedy unlawful workplace practices through informal methods of conciliation.  Once the EEOC determines that conciliation has failed, it may file suit in federal court.  However, nothing said or done during the conciliation may be used as evidence in a subsequent proceeding without written consent of the persons concerned.

In Mach Mining v. EEOC, the Court was required to decide whether and how courts may review those efforts.  In reversing the 7th Circuit Court of Appeals, the Court held that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit.  The Court held, however, that such review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.

By its terms, the statutory obligation to attempt conciliation necessarily entails communication between the parties concerning the alleged unlawful employment practice.  The statute therefore requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter and enter into voluntary compliance.

In order to comply with its obligation, the EEOC must inform the employer about the specific discrimination allegation.  This notice is usually contained in the EEOC’s “reasonable cause” determination letter.   Such notice must describe what the employer has done and which employees (or class of employees) have suffered.  The EEOC must give the employer an opportunity to remedy the alleged discriminatory practice.

The Court stated that a sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.  Should the employer present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion, written or oral, about conciliating the claim, a court must conduct the fact finding necessary to resolve that limited dispute.  Should it find for the employer, the appropriate remedy is to order the EEOC to undertake the mandated conciliation efforts.

The EEOC alone decides whether in the end to make an agreement or to resort to litigation.  The courts do not review such decisions. The court looks only to whether the EEOC attempted to confer about a charge, and not to what happened during those discussions.

The Court’s opinion favors employers to the extent it requires the EEOC to give notice to the employer of the unlawful employment practice and those that are affected, either individually or by class. Thus, an employer will know early on whether it is confronted with class allegations.  However, the EEOC retains the sole discretion on whether to agree to conciliation or litigate and the courts do not have the authority to review those decisions or what took place during the conciliation itself.

Additionally, the Court did not require dismissal of the underlying case if the EEOC failed to conciliate. Rather, the court is authorized to order the EEOC back to conciliation.

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