Decision analysis: Authorizing, while limiting, review of the EEOC’s efforts to conciliate

Julie Goldscheid is a Professor at CUNY School of Law.

On Wednesday, the Court issued its unanimous decision, written by Justice Elena Kagan, in Mach Mining, L.L.C. v. Equal Employment Opportunity Commission. As discussed in more detail in my argument preview and analysis, the case raised the question whether and to what extent the EEOC’s attempt to conciliate complaints of discrimination between claimants and employers is subject to judicial review. Consistent with the Justices’ critical questioning of both sides at oral argument, the Court declined to adopt the position either side proposed. Instead, the Court issued what might be seen as a compromise position, one the Court itself deemed “manageable.” It rejected the government’s position that no review was required, but defined the scope of review as “limited.”

The Court addressed the question in two parts: first, whether the EEOC’s conciliation efforts should be subject to judicial review; and second, if so, what the proper scope of judicial review should be. The Court’s opinion charted a middle course on both questions. The opinion emphasized the strong, though rebuttable presumption favoring judicial review of administrative actions. Statutory language would have to demonstrate Congress’s intent that an agency should police its own conduct in order to overcome that presumption. Here, the Court interpreted Title VII’s mandate that the EEOC attempt conciliation as a “necessary precondition” to suit, analogous to other “compulsory prerequisites to suit,” such as an employee’s obligation to file a timely charge with the EEOC, and to obtain a “right-to-sue” letter, which routinely are subject to judicial review. Although the Court agreed with the government that Title VII accords the EEOC “wide leeway” over the conciliation process, it rejected the idea that the Commission’s actions were immune from review. The Court recognized a need for review in the event, for example, that the EEOC declined entirely to make any efforts to conciliate whatsoever. Absent that review, the Commission’s compliance with the law would rest in its hands alone, a result that had no basis in Title VII’s language or history and that would be inconsistent with the historic strong presumption favoring judicial review of administrative action. Given the reviewable prerequisites to suit, the Court found no basis for concluding that the presumption of reviewability was rebutted here.

Having determined that the EEOC’s conciliation efforts are subject to judicial review, the opinion then turned to the question of what review is required. The Court set the limits for review based on Title VII’s statutory requirements that the EEOC afford the employer a chance to discuss and rectify an allegedly discriminatory practice. It rejected the government’s argument that the record here, in which the EEOC sent two letters — one announcing its finding of reasonable cause and informing the employer that a representative would be in touch to begin a conciliation process, and a second stating that the conciliation had “occurred” and failed – was sufficient. The letters themselves were not enough to demonstrate that an attempt to conciliate had in fact taken place; a court instead should be able to “verify” that an attempt to conciliate had taken place.

On the other hand, the Court rejected Mach Mining’s argument that the Court should draw on a standard such as that set out in the National Labor Relations Act (NLRA), to determine whether the EEOC “negotiate[d] in good faith” over a discrimination claim. The Court found the analogy between the NLRA and Title VII inapposite, since the heart of the NLRA is itself process, whereas Title VII is concerned with substantive results. In addition, the NLRA’s detailed approach to negotiation conflicts with the broad grant of latitude encompassed in Congress’s directive that Title VII contemplate a flexible approach to conciliation. The Court emphasized the discretion inherent in Title VII’s grant of authority to the EEOC in every aspect of the conciliation process, ranging from the pace and duration of conciliation efforts, the “plasticity or firmness” of its negotiating positions, and the contents of the relief sought. To evaluate any of those strategic decisions would conflict with the broad grant of discretion Congress intended.

Moreover, the Court concluded that having a court undertake a “deep dive” into the conciliation process, as Mach Mining urged, would be inconsistent with Title VII’s mandate that the conciliation process be kept confidential. Echoing Justice Kagan’s stated concerns at oral argument, the decision concluded that anything but bare bones review would require disclosure and use of the very information Congress deemed confidential. Disclosure, it reasoned, would undermine the conciliation process itself, because confidentiality is an essential part of the candor required for voluntary resolution of claims.

Having declined to adopt either party’s proposed approach, the Court sketched the contours of a “relatively barebones” review. It would require the EEOC to inform the employer about the specific allegation and which employees (or what class of employees) have suffered as a result. The EEOC must also “try to engage the employer” in oral or written communication to give it a chance to remedy the allegedly discriminatory practice. A reviewing court would evaluate whether the EEOC attempted to confer about a charge, not what happened during the negotiations, thus preserving the confidentiality of the process. In practical terms, the Court offered that a sworn affidavit from the EEOC stating that it attempted to confer about a charge and that its efforts failed usually will suffice to show that it has met the conciliation requirements. At the same time, if an employer disagrees, it can provide an affidavit or other credible evidence that the EEOC did not provide the requisite information or attempt to conciliate, and a court would then conduct fact-finding to adjudicate that dispute. Addressing the concerns about remedy raised in the briefs and oral argument, the Court clarified that the appropriate remedy for failure to conciliate would be ordering the EEOC to undertake a conciliation process.

Lawyers for employers already are hailing the decision as a “significant win” and predicting that employers will now be in a better position to settle meritorious claims on reasonable terms. Yet, the Court emphasized the limited nature of judicial review and the “abundant discretion” Title VII gives the EEOC with respect to the scope and limits of negotiations. It clearly declined to undertake the searching review sought by Mach Mining. By charting a middle course the Court did not weigh in on the sharply different views of the conciliation process that had been presented by the parties. The decision seems aimed at preserving the EEOC’s discretion to negotiate while ensuring some measure of accountability. Whether, or how, the decision affects practice will be seen in the years to come.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]