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Judicial review of conciliation efforts unauthorized, unworkable, EEOC says

November 5th, 2014  |  Pamela Wolf

Courts may not review the sufficiency of the EEOC’s pre-suit conciliation efforts in a Title VII suit, the agency told the Justices in a brief responding to Mach Mining’s contention otherwise. Moreover, the standards for review that have been articulated are unworkable, and the remedy for deficiencies in the conciliation process is more process, not dismissal, the EEOC said, urging the Court to affirm the Seventh Circuit’s similar conclusions below. Granting Mach Mining’s petition for cert last June, the Court has taken up the question of whether and exactly to what extent courts can enforce the EEOC’s “mandatory duty” to conciliate discrimination claims before filing lawsuits.

There is a lot at stake in the high-profile case — if employers are able to raise a failure-to-conciliate affirmative defense and win dismissal of an EEOC lawsuit without reaching the merits, the agency could be forced to change its conciliation procedures. The agency would be required to disclose information it has always understood to be confidential, for example. A ruling in favor of the employer in this case could also open the door to further scrutiny of the agency’s complete range of pre-litigation activity.

Seventh Circuit ruling. Below, the Seventh Circuit ruled that Mach Mining could not raise the EEOC’s failure to conciliate in good faith as an affirmative defense to the agency’s Title VII sex discrimination lawsuit. The Seventh Circuit disagreed with its sister circuits, including the, Second, Fourth, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits, and held that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who allegedly have violated Title VII. The language of Title VII, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convinced the appeals court that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. Further, the court explained that finding in Title VII an implied failure-to-conciliate defense would add to that statute an unwarranted mechanism by which employers could avoid liability for unlawful discrimination.

Congressional intent. In its response brief on the merits, the EEOC cited Title VII language in support of its argument that Congress did not intend to permit judicial review of the agency’s conciliation effort. According to the EEOC, its statutory duty is to “endeavor” to persuade employers to voluntary comply with Title VII, and Congress declined to specify any particular process for reaching that goal. The agency also underscored statutory language requiring that nothing that is said or done in conciliation be made public or used as evidence in a later proceeding absent consent. “That broad confidentiality mandate is incompatible with judicial review of the conciliation process,” the agency asserted. The EEOC’s letter finding reasonable cause to the employer and its letter stating that conciliation was unsuccessful should be sufficient to establish that the agency has met its duty to try to conciliate charges. Requiring only these facially valid documents also preserves confidentiality, the agency urged.

Judicial review principles. The Commission also pointed to the Administrative Procedure Act to illustrate longstanding principles of judicial review as applied to federal agencies, even though the APA was not implicated here. The informal conciliation process at issue in this case is not a final agency action under the APA, the EEOC said, because it’s neither a discrete decision nor agency action marking the culmination of the EEOC’s decision-making process. The same is true of the agency’s determination that conciliation has failed — it’s merely a step in a process leading to a court’s determination of whether unlawful discrimination has occurred. Further, an employer would be unable to obtain judicial review under the APA to force the EEOC to take particular actions during conciliation because an agency’s failure to act is only remediable when the agency has neglected to undertake a specific action required by law, and Title VII requires only that the EEOC “endeavor” to conciliate.

“Moreover, by deciding not to prescribe standards for judging the sufficiency of the Commission’s conciliation efforts, by requiring conciliation to be kept confidential, and by entrusting the ultimate decision whether conciliation has succeeded to the Commission, Congress made clear that the conciliation process is committed to agency discretion by law,” the EEOC argued.

Impact on enforcement. Judicial review of the EEOC’s conciliation efforts would also undermine effective enforcement of Title VII, the Commission asserted. Employers that see litigation as imminent would likely have an incentive to treat all communications during conciliation as potentially supporting an inadequate-conciliation argument as opposed to a genuine opportunity for dialogue. In addition, both the employers and the EEOC would likely be less open to negotiation if they knew that communications would not remain confidential and could potentially be used against them.

And once the EEOC files suit, employers have every incentive to raise sufficiency-of-conciliation arguments, according to the Commission. The result would be a burden on the courts, with mini-trials on the collateral issue, and delay that might even avoid adjudication on the merits altogether. “Experience has demonstrated that employers view the inadequate conciliation argument as a ‘potent weapon’ in Title VII suits …. and will use that weapon to obtain discovery, delay, and dismal,” the EEOC argued. Judicial review is unnecessary to ensure that the EEOC conciliates in good faith, the agency said. “The Commission has ‘powerful incentives to conciliate’ and it has a long history of doing so in many cases.”

Unworkable standard for review. The EEOC also argued that while several federal courts of appeals have authorized judicial review of the agency’s conciliation efforts, those courts have fallen short of formulating a workable standard with the result that individual judges determine conciliation sufficiency on an ad hoc basis. “This creates substantial uncertainty for the EEOC, which never knows if its informal conciliation efforts will someday be found insufficient,” the Commission said.

The EEOC called Mach Mining’s proposed factors for reviewing conciliation efforts no more workable than those articulated by the courts. The company’s proposed judicial review is “intrusive, imposing burdens on the EEOC to provide certain information, conciliate for a certain time, and negotiate in a certain way — even though there is no basis in the statutory text for any such rules.” Moreover, the company’s proposed remedy of dismissal makes it worse, the EEOC said, arguing that dismissing a Title VII lawsuit on the merits “is far too drastic a remedy for a deficiency in conciliation process.” The remedy for a lack of process, the agency said, should be more process.

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