EEOC Must Face Court Review, Justices Find

     WASHINGTON (CN) – Courts do have room to review, albeit narrowly, the decisions of workplace-fairness watchdogs, the U.S. Supreme Court ruled Wednesday.
     Mach Mining raised the question when faced with claim by the Equal Employment Opportunity Commission (EEOC) that it refused to hire a female coal miner.
     Title VII of the Civil Rights Act requires the EEOC to first attempt negotiating with an accused employer before it files suit, and Mach had claimed that the agency failed to engage with it in good-faith conciliation.
     The EEOC sought summary judgment on Mach’s failure-to-conciliate defense, but a federal judge in Benton, Ill., refused the agency such relief.
     Creating a circuit split, a three-judge panel of the 7th Circuit reversed in December 2013, holding that “the statutory directive to attempt conciliation” is “not subject to judicial review.”
     The Supreme Court took up the case last year and unanimously vacated the appellate opinion Wednesday.
     Though a court can indeed review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit, “the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case,” the 14-page opinion states.
     Noting that “Congress rarely intends to prevent courts from enforcing its directives to federal agencies,” the court said it applied a “strong presumption” in this case favoring judicial review of administrative action.
     Since “courts routinely enforce … compulsory prerequisites to suit in Title VII litigation,” such as requiring an employee to first obtain a right-to-sue letter before filing suit, that factor “supports judicial review of the EEOC’s compliance with the law’s conciliation provision,” the opinion continues.
     The court agreed with the government that the statute provides the EEOC with wide latitude over the conciliation process, “but no, Congress has not left everything to the commission,” Justice Elena Kagan wrote for the court.
     Another factor favoring judicial review is the certainty “that legal lapses and violations occur, and especially so when they have no consequence,” Kagan added.
     The court did find that Mach Mining cannot have the “court do a deep dive into the conciliation process” as part of the review it seeks.
     “Every aspect of Title VII’s conciliation provision smacks of flexibility,” Kagan wrote. Citing various soft language about how “the EEOC need only ‘endeavor’ to conciliate a claim,” Kagan said “all that leeway respecting how to seek voluntary compliance and when to quit the effort is at odds with Mach Mining’s bargaining checklist.”
     “Congress left to the EEOC such strategic decisions as whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield,” she added. “So too Congress granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief. For a court to assess any of those choices – as Mach Mining urges and many courts have done – is not to enforce the law Congress wrote, but to impose extra procedural requirements. Such judicial review extends too far.”
     Kagan also concluded that “Mach Mining’s brand of review would also flout Title VII’s protection of the confidentiality of conciliation efforts.”
     Though a sworn affidavit from the EEOC stating the conciliation efforts it employed failed usually fulfills the requirement, but Kagan said credible evidence from the employer, such as an affidavit, requires “a court to conduct the fact-finding necessary to decide that limited dispute.”
     “Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance,” she added.

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