The Supreme Court will determine the extent to which courts can review efforts by the Equal Employment Opportunity Commission (“EEOC”) to informally mediate discrimination claims before filing a lawsuit. Mach Mining, LLC argues that judicial review of the EEOC’s pre-suit conciliation efforts is permissible pursuant to the statutory language of 42 U.S.C. § 2000e-5(b). Contrarily, the EEOC asserts that Congress did not intend for judicial review of the EEOC’s pre-suit conciliation efforts. The Supreme Court will have the opportunity to resolve a circuit split regarding judicial review of the EEOC’s pre-conciliation efforts. Further, the Supreme Court will clarify the boundaries of the EEOC’s responsibilities in the conciliation process.
Questions as Framed for the Court by the Parties
Whether the court can impose the mandatory requirement of conciliation on the EEOC before the organization to file a civil discrimination suit?
Facts
In 2008, a woman filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). The woman alleged that Mach Mining, LLC (“MM”) denied her a job because of her sex. The EEOC determined that there was “reasonable cause to believe that Mach Mining had discriminated against a class of female job applicants,” specifically in regards to hiring practices. Title VII of the Civil Rights Act of 1964 requires the EEOC to attempt to form a conciliation agreement with an employer before suing an employer. The EEOC alerted MM so that conciliation could begin between the EEOC and MM. Ultimately, after discussing potential solutions, the parties were unable to reach an agreement. Consequently, in September 2011 the EEOC concluded that the conciliation process was ineffective and filed a complaint in the U.S. District Court for the Southern District of Illinois (“district court”) on behalf of the female applicants.
MM denied the claims of unlawful discrimination and contended that the EEOC did not conciliate in good faith. Subsequently, the EEOC moved for summary judgment, stating that the EEOC’s conciliation practices were unreviewable by the courts.
The district court denied the motion and held that courts can assess conciliation efforts to determine if the EEOC “made a sincere and reasonable effort to negotiate.” The district court was unable to articulate a standard for “sincere and reasonable efforts” because the EEOC argued that the EEOC’s conciliation efforts were not judicially reviewable as a defense to unlawful discrimination. The court certified the question to the Seventh Circuit asking whether and to what extent conciliation is judicially reviewable as an affirmative defense to unlawful discrimination.
In 2013, the Seventh Circuit held that the EEOC’s conciliation efforts were not reviewable by the court. The Seventh Circuit considered the statutory language; whether there was a workable standard for such a defense; whether the defense might fit into the broader statutory scheme; and other relevant case law in reaching its decision.
In particular, the Seventh Circuit held that the statutory language of Title VII does not imply that the EEOC’s conciliation efforts are judicially reviewable. Rather, the statutory language states that the EEOC’s approach to conciliation is pursued according to the EEOC’s discretion and the confidentiality provisions prohibit review of such decisions. The Seventh Circuit stated that there was no statutory standard of review for the conciliation process. The Seventh Circuit also noted that other circuits that have considered this issue did not articulate a unified standard that could be followed. The Seventh Circuit noted that allowing employers to challenge conciliation would undermine their efforts to participate in the conciliation process because employers would be preoccupied with establishing an account of the EEOC’s failures. The Seventh Circuit relied on EEOC v. Caterpillar to demonstrate how this type of judicial review shifts a court’s focus from examining an employer’s alleged discriminatory conduct to the EEOC’s pre-suit conduct. The Seventh Circuit is the first circuit to reject failure to conciliate as an affirmative defense for the EEOC.
On February 25, 2014, the Supreme Court granted certiorari to address the issue of whether courts may review the EEOC’s attempts to resolve Title VII disputes in conciliation.
Analysis
Under 42 U.S.C. § 2000e-5(b), (f)(1), the statute that codifies Title VII of the Civil Rights Act of 1964, the EEOC is required under to use “informal methods” to resolve a dispute between an employer and employee before launching a full investigation into the employee’s claim of discrimination. The Seventh Circuit, however, determined that courts could not force a mandatory conciliation requirement on the EEOC before filing its claim.
MM argues that Congress, in creating Title VII, wanted to make conciliation the preferred method of solving claims between employers and employees. Additionally, MM argues that noncompliance with any section of Title VII makes an attempt at conciliation a precondition that the EEOC must meet before filing discrimination suits. By removing the requirement for conciliation while maintaining other procedural protections for employers, MM argues that the Seventh Circuit unfairly and arbitrarily removed a critical defense for employers facing discrimination claims.
The EEOC counters that Congress created a multi-step process within Title VII to ensure that the commission had a reasonable belief that the employer was discriminating before filing suit. Additionally, the EEOC contends that Congress’ requirement for confidentiality for the commission’s initial investigation and the commission’s informal conciliation attempt shield the EEOC’s procedures from being subject to judicial scrutiny—without this protection from scrutiny, the EEOC could not effectively try to obtain settlements between employees and employers.
DOES CONGRESS INTEND CONCILIATION TO SERVE AS A PROCEDURAL PROTECTION FOR EMPLOYERS DEFENDING AGAINST DISCRIMINATION SUITS?
MM argues that the legislative history surrounding the Civil Rights Act of 1964 demonstrates that Congress intended for employers to preserve important procedural protections. MM contends that these procedures are essential to providing employers with an opportunity to settle an employee dispute without incurring the costs of defending against the employee’s claim. Thus, MM argues that the EEOC’s capacity to file civil discrimination suits on behalf of employees and prospective job applicants is expressly conditioned on an attempt to broker a settlement through conciliation with an EEOC mediator; employees must file a claim of discrimination with the EEOC within ninety days—ensuring that the incident of discrimination was recent and can be efficiently settled between employee and employer. MM contends that federal courts, including the Seventh Circuit, have required other procedural protections including a timely filing of a discrimination charge by the employee to the EEOC. Here, MM argues that the Seventh Circuit’s decision eliminates the protection of employers seeking to resolve discrimination claims that may have been unknown to them before a civil suit was filed. Additionally, MM argues that the Seventh Circuit’s decision has made Congress’ favored method of disposing of discrimination suits less likely to occur; the EEOC may potentially file civil suits without seeking informal settlement. MM argues that the Congress’ preference for an informal settlement is shown in the requirement of Title VII that the EEOC seek a settlement “by informal methods conference, conciliation, and persuasion.”
The EEOC argues that the multi-step process of (a) the EEOC’s inquiry, (b) the EEOC establishing that reasonable grounds for a discrimination claim exist, and (c) the EEOC seeking an informal settlement provides sufficient procedural protections. The EEOC contends that the commission meets its requirements under Title VII before filing suit so long as it attempts to informally resolve disputes—the EEOC is not required to “avoid litigation at any cost” under any provision of Title VII. Additionally, the EEOC argues that Title VII only requires that the EEOC seek settlement through “conference, conciliation, or persuasion.” Thus, the EEOC maintains that under Title VII the EEOC has discretion in how it chooses to pursue informal settlements; so long as informal settlement is sought, the EEOC conforms with its procedural requirements.
DOES TITLE VII'S REQUIREMENT OF CONFIDENTIALITY RESTRICT JUDICIAL SCRUTINY?
MM argues judicial review of the EEOC’s attempts at conciliation are allowed, even though Title VII includes a confidentiality requirement such that nothing “said or done” within the informal settlement process “may be made public.” MM argues that the confidentiality provision is included only to allow parties within a discrimination suit to have protection in seeking informal settlement; the provision creates no bar to judicial review and enforcement. MM argues that a court may review evidence regarding the attempts of parties seeking conciliation; when reviewing settlement negotiations under Federal Rule of Evidence 408, courts can consider the parties’ procedural efforts even though settlement efforts cannot provide any substantive evidence on the merits of claims. Ultimately, MM argues that without judicial scrutiny, judicial enforcement of the conciliation precondition will be impossible, creating a “backhanded” method to eliminate employer protection.
The EEOC argues that Congress deliberately intended complete confidentiality of the conciliation process to prevent courts from considering the sufficiency of the EEOC’s attempts at conciliation before filing suit. The EEOC states Congress’ “comprehensive language”—including Title VII’s requirement that “anything said or done” during conciliation cannot be used as evidence—demonstrates Congress’ intent to prevent judicial review of the EEOC’s efforts. Additionally, the EEOC asserts that Title VII contains no express allowance for judicial review of EEOC efforts, despite the procedural hurdles expressly created throughout Title VII. Therefore, the EEOC argues that Title VII’s broad requirement for confidentiality without any exception for judicial review would require courts to construct their own exceptions to the confidentiality provision. The EEOC contends that if Congress intended to permit judicial review of the EEOC’s conciliation efforts it would have expressly stated this intent.
HISTORICALLY, HAVE COURTS REVIEWED AND IMPOSED TITLE VII'S CONCILIATION DUTY ON THE EEOC?
MM argues that before the Seventh Circuit decision, no prior circuit court had found there was any limitation on judicial review of the EEOC’s preconditions in filing suit. Additionally, MM notes that Congress made judicial review of agency actions the default presumption for government agency action; therefore, Congress cannot implicitly block review and can only do so expressly. Thus, MM contends that the decision of Seventh Circuit is at odds with precedent for decisions of both general government agencies and those of the EEOC specifically. Additionally, MM argues that this precedent, whose holding is at odds with judicial review for the actions of other government agencies, may undermine future judicial review of other federal actions.
The EEOC argues that an attempt at informal conciliation does not represent final agency action; therefore, judicial review is inappropriate here. The EEOC argues that final agency action occurs only when an agency’s action is the last step of the agency’s decision-making process. The EEOC argues that Congress only intended informal conciliation to serve as an initial step in a discrimination claim. Without any official requirements for the implementation of the conciliation attempts, the EEOC argues that holding that judicial review is appropriate for the EEOC’s informal attempts would be at odds with historical precedent on review of agency actions. Furthermore, the EEOC contends that judicial scrutiny of the settlement efforts of both parties, as well as the statements of both parties when seeking settlement, must not inform subsequent adjudication. Otherwise, the EEOC argues, this scrutiny would undermine the settlement process, for without confidentiality neither party could make substantive efforts to settle the dispute without losing ground if the matter went to trial.
Discussion
In this case, the Supreme Court will have the opportunity to decide whether and to what extent courts can examine the EEOC’s conciliation efforts. The petitioner, Mach Mining (“MM”), argues that Congress intended the EEOC’s conciliation efforts to be subject to judicial review; therefore, courts are permitted to inquire into the EEOC’s conciliation efforts. The respondent, the EEOC, argues that in a Title VII lawsuit, a court cannot review the adequacy of the EEOC’s conciliation efforts. The EEOC states that the statutory text of Title VII indicates that Congress did not intend to authorize the review of the EEOC’s conciliation efforts. This case will determine the scope of the EEOC’s responsibility in the conciliation process. Further, the Supreme Court has the chance to resolve a circuit split.
IS JUDICIAL REVIEW APPROPRIATE?
The Equal Employment Advisory Council and Society for Human Resources Management (“EEAC & SHRM”), as amicus in support of MM, contend that judicial review of the EEOC’s conciliation efforts is essential to the proper implementation of Title VII. They state that the EEOC has consistently failed to participate in faithful pre-suit conciliation with employers. The EEAC & SHRM contend that this behavior warrants close judicial oversight of the EEOCs pre-suit conciliation efforts.
The Impact Fund and other public interest organization (collectively, “Impact Fund”), as amici in support of the EEOC, argue that review of the EEOC’s conciliation efforts is inappropriate because it involves judges in settlement discussions. The Impact Fund claims that when judges become entangled in settlement negotiations, they are exposed to privileged information regarding the merits of the claims, “compromising their ability to remain neutral.”
WHAT WILL JUDICIAL REVIEW DO TO THE LITIGATION PROCESS?
The American Insurance Association (“AIA”), as amicus supporting MM, maintain that prohibiting judicial review of the EEOC’s conciliation efforts will increase litigation costs. The AIA states that conciliation is intended to make litigation the last resort and that if the EEOC’s conciliation efforts are not subject to judicial review, meaningful settlement negotiations will dissolve, and therefore litigation will become the norm.
Several States (Arizona, Hawaii, Illinois, and Washington), as amici supporting the EEOC, argue that additional judicial review of the EEOC’s pre-suit conciliation efforts is unnecessary. These States contend that judicial review of conciliation incentivizes employers to litigate, especially when the amount in settlement is greater than the employer envisioned. They maintain that allowing for judicial review will grant employers the power to identify faults in the conciliation process and avoid liability for their suspected unlawful conduct before the merits of the case can be presented.
WHAT DOES JUDICIAL REVIEW MEAN FOR EMPLOYERS AND CLAIMANTS?
The Women’s Rights Organization and various individuals who support their cause (collectively, “WRO”), as amici in support of the EEOC, argues that judicial review of the EEOC’s pre-suit conciliation efforts is not only prohibited by the statutory language of Title VII, but it will deter discrimination claims. The WRO states that when courts are able to investigate the pre-suit conciliation process, the anonymity of the women who file these claims is threatened. Consequently, the WRO argues that these women will be in fear of further harassment and will be less inclined to file a claim.
The Retail Litigation Center— in partnership with the U.S. Chamber of Commerce, National Federation of Independent Business, and the American Trucking Associations—argue that eliminating judicial review of EEOC conciliation will hinder voluntary resolution of Title VII disputes. The Retail Litigation Center states that absent judicial review, the EEOC will not practice meaningful conciliation. The Retail Litigation Center argues that in the past, the EEOC has circumvented its duty to conciliate. Further, the Retail Litigation Center argues that employers want to avoid expensive litigation; therefore employers will not use judicial review of the EEOC’s pre-conciliation efforts to develop an affirmative defense in litigation.
Conclusion
In this case, the Supreme Court will decide if courts can (a) conduct an in-depth review of the EEOC’s attempt to have parties informally mediate a claim before launching a discrimination suit and (b) require the EEOC to conduct conciliation before filing suit. The EEOC argues that its attempt at informal resolution of the claim is not subject to judicial review. Under the EEOC’s approach, the EEOC’s assertion that it had made a good-faith attempt to conduct conciliation is shielded from judicial review. MM counters that federal courts should be empowered to scrutinize the EEOC’s conciliation efforts and force the EEOC to engage in additional informal resolution procedures if a court determines the EEOC’s prior attempts to resolve the claim before filing were insufficient. The Supreme Court’s opinion will likely touch on the safeguard that conciliation efforts provides employers, the willingness of Title VII claimants to come forward, and the issue of whether judicial review compromises judicial neutrality.