Once again, the Supreme Court has been forced to address the issue: Who is watching the watch dog?
This time, the issue is whether the courts have the authority to review the Equal Employment Opportunity Commission’s (EEOC) pre-suit conciliation efforts. When an employee or group of employees allege a violation of their Title VII rights, the EEOC attempts to reach a conciliation agreement between the parties before filing a complaint against the employer in court.
When the EEOC went to court after it failed to reach conciliation between the parties in a sexual harassment complaint against Mach Mining, the company complained that there was a lack of good faith in the EEOC’s conciliation efforts. The EEOC held that its practices cannot be reviewed by the courts. The district court disagreed, but the Seventh Circuit upheld the claim saying there is no statutory review for the conciliation process. Now, in a unanimous vote the Supreme Court has reversed this decision and held that courts may review the conciliation efforts to ensure that the EEOC has given an employer an opportunity to remedy the alleged discriminatory practice. Until now, the EEOC merely had to provide a sworn affidavit stating that it has put in the necessary efforts to fulfill its conciliation obligations.
Employers can definitely draw a modicum of comfort from this ruling, as it should increase the commitment of all parties to come together to find a mutually agreeable resolution that does not involve litigation. However, be cautioned – the scope of a court’s authority to review the EEOC’s efforts is narrow. The courts can ascertain:
The EEOC retains extensive discretion to determine the kind and amount of communication with an employer that should occur in any given case, and whether an issue can be settled amicably or will require court proceedings.
Time will tell how the courts will use their right to judicial review in such cases. When cases are filed by the EEOC, we can expect to see an increase in the employer claims of inadequate efforts to reach conciliation. In every case, the courts will be considering the willingness and efforts made by all parties to reach a fair resolution.
DCR encourages all companies to document their interactions and correspondence with the EEOC to prove that, despite their efforts, conciliation failed. To successfully demonstrate that the EEOC failed to make serious conciliation efforts, the accused company must be able to show that the EEOC failed to:
This year marks the 50th anniversary of the creation of the EEOC. Its mission statement is simple: Stop and remedy unlawful discrimination. Each year, the Commission mediates and settles more than 100,000 discrimination complaints. There is no denying the importance of their mission. However, when tasked with a mission of such importance and a significant caseload, agencies can become heavy-handed or autocratic in their approach. The courts serve as the balancing force, ensuring that all parties are treated justly. Controls imposed by this most recent Supreme Court decision increase the ability and motivation of all parties to work together to eliminate workplace discrimination.
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