High Court OKs Narrow ‘Failure to Conciliate’ Defense

In another blow to employment discrimination victims, a unanimous U.S. Supreme Court this week held that courts may conduct a “narrow” review of whether the EEOC met its statutory obligation to permit an employer to achieve voluntary compliance with federal discrimination laws before the EEOC files a lawsuit against the employer.

The Court in the case of Mach Mining v. EEOC overturned a ruling by the U.S. Court of Appeals for the 7th Circuit that courts lack  the authority to second-guess the EEOC’s conciliation efforts.  The Chicago-based appeals court called the so-called “failure to conciliate”  defense nothing more than a cynical tactic pursued by employers to waste EEOC resources and delay a finding of  liability for illegal employment discrimination.

The Supreme Court said  courts may engage in a limited review of whether the EEOC’s satisfied its statutory obligation under Title VII of the Civil Rights Act to give an employer notice and an opportunity to achieve voluntary compliance with the law prior to filing a lawsuit against the employer. The Court said the EEOC must “tell the employer about the claim – essentially, what practice has harmed what person or class – and must provide the employer with the opportunity to discuss the matter in an effort to achieve voluntary compliance.”  In most cases, the EEOC can meet its obligation by submitting an affidavit to the court but an employer can dispute the affidavit and request a hearing.

A bright spot in the Court’s ruling is that employers can no longer challenge the substance of EEOC’s settlement tactics, such as the reasonableness of the EEOC’s efforts to settle the case. In the past, employers argued, for example, that the EEOC improperly demanded unreasonable monetary damages. The Supreme Court said that  “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. 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.”

In recent years, employers have tied up discrimination cases – sometimes for years –  with arguments that the EEOC did not try hard enough to settle a case prior to filing a lawsuit.  At least one federal judge issued a single ruling that unilaterally dismissed dozens of substantive claims brought by victims of  horrendous sexual harassment because the judge deemed the EEOC’s conciliation efforts to be inadequate.

The high court’s ruling promises to halt the most egregious abuses of the past but it still allows business interests to tie up the supposedly scarce resources of federal courts with procedural arguments that are irrelevant to the substance of discrimination complaints. This inevitably delays justice for discrimination victims and contributes to the EEOC’s backlog of more than 70,000 cases.  The ruling promises to have the most impact on EEOC “pattern and practice” cases against large employers that create obstacles in identifying discrimination victims and evidence of discriminatory acts.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I call upon the U.S. Congress to revamp the profoundly unfair and inefficient federal system for handling employment discrimination complaints. I also propose that the federal judiciary establish a special federal appellate court to handle appeals in federal employment discrimination cases to insure uniformity and fairness.

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