EEOC Required to Make “Conciliation Efforts”

May 7, 2015 Discrimination

The U.S. Supreme Court decided in a recent case, Mach Mining v. EEOC, that the EEOC must use the “conciliation process” as required by Title VII, and failure to do so will require the EEOC to backtrack in a case.

This case was brought by an applicant for multiple positions with Mach Mining who was turned down each time.  The applicant claimed that her denials were because of gender discrimination, and the EEOC agreed to take her case to District Court.  If the EEOC decides to take a case on behalf of a plaintiff and sue a company, Title VII requires them to, “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  In this case, the EEOC believed that they had met this requirement by sending one letter to the company stating that they would attempt conciliation, then later sending a second letter stating that their attempts had failed.  No actual attempts were made.

The Supreme Court decided that the EEOC’s conciliation effort in this case was non-existent, and that nothing more than lip service had been paid to their requirement to attempt conciliation with the company.  Further, the Supreme Court stated that they, and any other court, have some jurisdiction to ensure that the EEOC makes an actual conciliation effort. Specifically, the court can check that the EEOC (1) informed the employer about the specific allegation, describing both what the employer has done and which employees have suffered as a result; and (2) tried to engage the employer in some form of discussion to give the employer an opportunity to remedy the allegedly discriminatory practice.

While this decision would at first seem like a victory for employers, the victory is pretty hollow.  If the EEOC fails to meet their obligation to attempt conciliation, the only punishment is that the case is paused while the conciliation process is restarted. Still, this case can be helpful to employers in the future. Cases can often be resolved during the conciliation process, and if the employer claims a failure to conciliate late enough in the process, it will allow for a thorough review of all evidence the EEOC has against the employer prior to what is essentially a settlement conference. That additional information may be what is needed to get the case resolved before an expensive trial begins.