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EEOC must "conciliate" before it brings suit under Title VII and what that means

Russ Samson Iowa Employment & Labor Law Dickinson Law Des Moines Iowa

Posted on 06/24/2015 at 07:53 AM by Russell Samson

Title VII's prohibition against employment discrimination is generally enforced beginning with the filing of a complaint with the EEOC.  As promptly as possible, the EEOC is to investigate the complaint and make a determination of reasonable cause.  42 U.S. Code § 2000e–5(b) continues:

If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.

According to the court record before the United States Supreme Court in the April 29, 2015 decision in Mach Mining, LLC v. EEOC, a woman filed a charge with the EEOC asserting that Mach Mining had not hired her as a miner because of her sex.  The EEOC investigated.  It then sent a letter to Mach Mining informing the company that the EEOC had determined there was reasonable cause to believe that the company had unlawfully discriminated against the complaining female and a class of women who had also applied for mining jobs.  That first letter continued that Mach Mining and the complainant were invited to participate in “informal methods of resolution,” stating that a representative of the EEOC “would soon ‘contact [them] to begin the process.’” About a year later, the EEOC itself sued Mach Mining.  In the complaint filed in federal court, the EEOC asserted that “[a]ll conditions precedent to the institution of this lawsuit”—including an attempt to end the challenged practice through conciliation—“ha[d] been fulfilled.”  Mach Mining contested that statement, asserting that the EEOC had failed to “conciliat[e] in good faith” prior to filing suit.  During the period between the first, the “would soon contact,” letter and the filing of the lawsuit, the EEOC sent a second letter which said that, “such conciliation efforts as are required by law have occurred and have been unsuccessful” and stated that any further efforts would be “futile.” The EEOC contended that, if there were a question about compliance with its obligation to resolve the matter informally, all that should be examined is its ipse dixit that whatever is required by law had taken place. In an opinion authored by Justice Kagen, the Supreme Court was unanimous in rejecting this “trust me when I say I did whatever is required” assertion.  It was observed that the Supreme Court and Congress both know that “legal lapses and violations occur, especially when they have no consequences.”  The Supreme Court believed that in crafting the remedial scheme for Title VII, Congress placed great importance on voluntary compliance and cooperation.  Indeed Congress made the obligation to attempt conciliation prior to suit a mandatory “key component.”  So, ruled the Court, if a party raises a question about compliance with the precondition, a district court is required to verify that the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge prior to itself bringing suit. Because of the explicit restriction that “[n]othing said or done during and as a part of such informal endeavors may be made public . . . or used as evidence,” the Supreme Court limited the questions a district court could consider to:

  • Did the EEOC inform the employer about the specific allegation(s) with regard to which it has determined there is reasonable cause? (That is, did the EEOC tell the employer what it is alleged to have or have not done, and how that / those practice(s) has / have harmed which employee or class of employee?) AND
  • Did the EEOC attempt to engage the employer in some form of discussion (which can be oral or written) such that it can be said that the employer had “an opportunity” to discuss and remedy the situation.

The Supreme Court was clear that the EEOC is generally unfettered in its decisions on such things as the pace and duration of conciliation efforts, the plasticity or firmness of the negotiating positions, and the content of the Commission’s demands for relief.  The Supreme Court was clear that the conciliation obligation has no “good faith” overlay such as is found in the duty to bargain under the National Labor Relations Act.  Indeed, the Supreme Court suggested that the EEOC might meet its obligation to demonstrate compliance through, “A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed.” An employer can challenge the EEOC declaration through, “credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim.”  If there were to be such a challenge, the Supreme Court instructs that the trial court is to conduct very limited fact finding to determine which of the two versions of what the EEOC did is the more accurate. In Mach Mining, the Supreme Court instructed that if the district court should, following the limited fact-finding, determine that the conciliation obligation had not been met by the EEOC, the court should hold the action before it in abeyance and order the EEOC to undertake the efforts to obtain voluntary compliance. My interpretation: While there can indeed be judicial review of the question of whether the EEOC complied with its obligation to attempt conciliation, the filing of a motion questioning whether that obligation was met does nothing but provide a slight delay to litigation. If one is willing to capitulate and give the EEOC everything the EEOC may desire, then perhaps file a “was no conciliation” motion. In Iowa, we don’t see a large number of cases brought by the EEOC. The Iowa Civil Rights Act, Chapter 216 of the Iowa Code has a different remedial scheme than Title VII. The Iowa Civil Rights Commission is not authorized to bring litigation in a court. Rather, after determining there to be probable cause, the agency may haul a respondent into an administrative hearing. Prior to doing so, the ICRC staff is required to “endeavor to eliminate [the practice] by conference, conciliation, and persuasion.” The statute contemplates that at least 30 days will be used for those efforts. The Executive Director of the ICRC is authorized, after the 30-day period has run, to make a finding that further efforts to settle the complaint are “unworkable” and thus the conciliation process should be bypassed in favor of the administrative hearing. There is no requirement in Iowa’s law that there be any conciliation effort before an action is commenced in court by an individual. Because Iowa’s Administrative Procedure Act, Iowa Code Chapter 17A, requires both exhaustion of administrative remedies, and “final” agency action, it is felt unlikely that the efforts of the Iowa Civil Rights Commission staff at “conciliation” will ever be subject to judicial review. But assuming that the review is on the same limited parameters as is true under Title VII -- that is, one is not going to review how the ICRC actually conducted the conciliation -- is that a loss?

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