In what has been initially hailed as both a small victory for companies as well as for employees, the Supreme Court ruled unanimously on Wednesday, April 29th, that proper Equal Employment Opportunity Commission (EEOC) procedures may be subjected to court oversight. More specifically, the Court mandated that the EEOC must make an attempt at conciliation between the aggrieved party it represents and the company that is being accused before attempting litigation. The case involved a woman attempting to get a job with an Illinois mining company. She complained to the EEOC that she was being discriminated against because the company doesn’t hire female miners. The EEOC investigated the company and found cause to bring forth a lawsuit, however it did so, claimed Mach Mining, without making a good-faith attempt at conciliation, a form of alternative dispute resolution.
This attempt at conciliation is required in the EEOC statute; however, the practical application of the threshold of a “good-faith” effort has been a largely murky at best.The specific language in the statute states that the EEOC “shall endeavor to eliminate [an] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Mach Mining claimed that the EEOC only sent two letters to the company: the first to invite both the company and the woman to an informal resolution process, and a second letter a year later stating that future attempts to conciliate would be futile and that the case was going to litigation. This comes as many legal and business experts have expressed their frustration that the EEOC has become more aggressive towards pursuing litigation, taking advantage of the ambiguous language regarding conciliation. The ruling gives employers the option to have the court review the EEOC conciliation procedures to determine if they were completed in the court’s opinion of good-faith standards. The Court called it a “bare bones” review, merely looking at the procedural compliance, and not the actual content of the complaint. If the court is dissatisfied, it will require the two parties to go back to the negotiating table.
A split decision occurred leading up to the Supreme Court hearing. First, a trial court ruled against the EEOC’s threshold and in favor of Mach Mining, and then the 7th Circuit Court of Appeals ruled that the threshold was a matter within the EEOC’s “expert judgment.” The Obama administration had spoken on the case in favor of the EEOC’s standards, believing that the agency should have sovereignty over making this determination. Justice Elena Kagan, who wrote the opinion, disagreed with the administration, stating the need for some kind of judicial oversight:
“Absent such [judicial] review, the Commission’s compliance with the law would rest in the Commission’s hands alone. We need not doubt the EEOC’s trustworthiness, or its fidelity to law, to shy away from that result. We need only know—and know that Congress knows—that legal lapses and violations occur, and especially so when they have no consequence.”
Ironically, the president may be the only person truly disappointed by the opinion coming from a Justice whom he appointed. Gauging a sample of legal experts, it would appear that nearly all of them determine the decision to be a victory based on their perspective. University of Colorado law professor, Melissa Hart, says “I think it’s unambiguously a win for the EEOC and complainants,” while employment lawyer, Charles F. Knapp, believes that the bare bones review will “provide hope to employers who are trying to rein in the EEOC from bringing litigation that goes beyond what they tried to resolve in the administrative phase.” A headline from Bloomberg screams, “Supreme Court Backs Companies in EEOC Job-Bias Clash,” yet R. Scott Oswald, a managing principal with The Employment Law Group, says that the ruling means, “Employers can no longer drag out EEOC proceedings in order to avoid answering to a court for their actions.” This mixed reaction seems to be across today’s news spectrum, yet in over a dozen opinions analyzed, nobody appears to be disappointed. Emily R. Grannis from the National Law Review probably summarizes it best saying that, “In all likelihood, this decision will not have a particularly big impact on most EEOC lawsuits. Unless an employer has real evidence that the EEOC did not discuss conciliation or informal resolution of the dispute, then an EEOC lawsuit will be allowed to proceed.”
Bloomberg Politics – Greg Stohr
Forbes – Daniel Fisher
National Law Review – Emily R. Grannis
Wall Street Journal Law Blog – Jacob Gershman