On April 25, 2015, the United States Supreme Court released it’s much anticipated opinion on the EEOC’s conciliation effort requirements prior to filing suit, stating in part:
We hold that a court may review whether the EEOC satisfied it’s statutory obligation to attempt conciliation before filing suit. But we find that the scope of that 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. Mach Mining. LLC v. E.E.O.C., 135 S.Ct. 1645, 1649 (2015).
The judgment of the Court of Appeals was vacated and the matter was remanded back to the Seventh Circuit for further proceedings. Subsequently, the Seventh Circuit remanded the case back to the district court for proceedings consistent with the opinion of the Supreme Court.
Back to Square One
Expectedly, upon remand to the district court, the EEOC renewed its motion for partial summary judgment on Mach Mining’s conciliation affirmative defense. On January 19, 2016, District Judge J. Phil Gilbert issued his memorandum opinion. A link to the opinion is provided here. Judge Gilbert noted that in the Supreme Court’s opinion, it puts forth a two-part test to determine whether the EEOC had complied with the statutory requirement of 42 U.S.C. § 2000e-5(b).
First, the EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. Second, the EEOC must try to engage the employer in an informal method of “conference, conciliation, and persuasion.” The informal method requires some form of discussion (whether written or oral) to give the employer an opportunity to remedy the allegedly discriminatory practice. However, the informal method has limits and the “EEOC need only ‘endeavor’ to conciliate a claim without having to devote a set amount of time or resources to that project.” Further, there are no specific steps or measures that the EEOC is required to take and it has full discretion to use whatever informal procedure it deems appropriate in each case. The EEOC also has full discretion to determine when such informal means are unsuccessful and when to proceed to litigation.
A Narrow Judicial Review
Judge Gilbert noted that judicial review is limited to the determination that the EEOC, “actually, and not just purportedly” attempted conciliation. It is a narrow review that “looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.” Indeed, the judicial review is narrow. In addition, the “bookend” letters from the EEOC – the first inviting conciliation and the second finding conciliation was not successful (without evidence that there was communication in between the letters in an attempt to remedy the discriminatory employment practice) -- are not enough.
Nonetheless, the district court found that the EEOC’s Determination of Reasonable Cause letter satisfied the first prong as it properly described both what Mach Mining had done (because of their sex, Mach Mining failed to recruit and hire) and which individuals (or what class of individuals) had suffered as a result (Charging Part and a class of female applicants). The court found the second prong to be more difficult to review.
The Second Part of the Two-Part Test Proves Difficult
Judge Gilbert noted that the Supreme Court has indicated that, “A sworn affidavit from the EEOC stating that it has performed its obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement.” However, if “the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the fact finding necessary to decide that limited dispute.”
The EEOC provided a Declaration which stated that the EEOC engaged in oral and written communications with Mach Mining, providing Mach Mining with the opportunity to remedy the discriminatory practices described in the Determination. Judge Gilbert found that this Declaration would be sufficient to show that the EEOC met its conciliation requirement in this matter. However, Mach Mining produced an Affidavit as well.
The court noted that Mach Mining’s affidavit did not state that the EEOC failed to conciliate in any manner– only that Mach Mining had requested information from the EEOC that was “necessary to determine whether the EEOC satisfied its pre-suit conciliation obligations” and Mach Mining’s Requests for Admission to the EEOC. The court noted that Mach Mining’s memorandum of opposition argued that the EEOC failed to provide an “opportunity to remedy” but their affidavit did not attest to that statement.
Judge Gilbert stated that to refute the EEOC’s Declaration, Mach Mining was required to provide an affidavit, or other evidence, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim. The affidavit provided by Mach Mining only indicated that the EEOC did not provide all the information that Mach Mining requested, but not that it failed to provide the requisite information. Judge Gilbert reiterated that the scope of judicial review is narrow with regard to conciliation on discrimination charges. It focuses on whether the EEOC endeavored to conciliate – not the extent or means of conciliation.
Thus, Judge Gilbert found that the EEOC provided Mach Mining with the proper notice and based on the Declaration provided, the EEOC engaged in oral and written communications with Mach Mining to provide Mach Mining with the opportunity to remedy the discriminatory practices. Therefore, the EEOC met the two-part test set out by the Supreme Court in Mach Mining and summary judgment was granted as to Mach Mining’s failure to conciliate affirmative defense.
Of note to the opinion, but beyond the scope of this article, were Judge Gilbert’s rulings on various EEOC motions to strike certain arguments and evidence submitted by Mach Mining in support of it’s memorandum in opposition. The opinion should be reviewed to assess those evidentiary issues as well.
Protect Your Opportunity to Remedy
In conclusion to his opinion, Judge Gilbert stated that he understood Mach Mining’s position that it should be entitled to receive demand calculations and additional information during the conciliation process; however, he could not direct that such information be provided. “The Supreme Court has held that the EEOC has no procedural requirements with regard to conciliation beyond engaging in some form of discussion and there is no dispute that some form of discussion did occur in this matter.” Judge Gilbert further noted that conciliation is simply one part of a process and an employer who is dissatisfied with conciliation has the option of proceeding to litigation. The court noted that although § 2000e-5(b) of 42 U.S.C prohibits the disclosure of “anything said or done” during the informal conciliation process, it does not prohibit disclosure of information obtained during the EEOC’s investigation and such information becomes available through discovery.
With regard to refuting the EEOC’s Declaration in support of its conciliation efforts, Judge Gilbert’s comments are instructive for employers going forward. The court noted that Mach Mining’s affidavit did not state that the EEOC failed to conciliate in any manner– only that Mach Mining had requested information from the EEOC that was “necessary to determine whether the EEOC satisfied its pre-suit conciliation obligations” and Mach Mining’s Requests for Admission to the EEOC. The court noted that Mach Mining’s memorandum of opposition argued that the EEOC failed to provide it an “opportunity to remedy” but their affidavit did not attest to that statement.
Thus, going forward, employers must ensure that their affidavits in opposition state both that the EEOC failed to conciliate in some manner and that the EEOC failed to provide the employer with an “opportunity to remedy.” The affidavit should indicate that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim. The affidavit must establish that the EEOC’s failures prevented the employer from its “opportunity to remedy.”
