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.”

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