Wednesday, April 29, 2015

SCOTUS: EEOC Conciliation is Mandatory and Reviewable

The Supreme Court just issued its opinion in Mach Mining, LLC v. EEOC.

Title VII requires the EEOC to first attempt "conciliation" prior to filing a lawsuit. In this case, the EEOC just sent two letters to the employer: (1) Notifying the employer that a representative would be contacting them about the conciliation process; and (2) Notifying the employer that conciliation efforts had been unsuccessful. What conciliation efforts? Exactly.

The Supreme Court held that courts have the authority to review whether the EEOC fulfilled its conciliation duties. However, the scope of review is very narrow. Let's cut to the chase - what does the EEOC need to do, how does it get reviewed, and what's the remedy for failure? Per the syllabus:
The proper scope of review thus matches the terms of Title VII’s conciliation provision. In order to comply with that provision, the EEOC must inform the employer about the specific discrimination allegation. Such notice must describe what the employer has done and which employees (or class of employees) have suffered. And the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. 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 about conciliating the claim, a court must conduct the factfinding 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.
Justice Kagan authored the unanimous opinion.

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