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Labor and Employment Law Alert - Unanimity and Clarity: U.S. Supreme Court Outlines Standards for Judicial Review of EEOC Conciliation

In a unanimous decision, the U.S. Supreme Court held that courts have limited authority to second-guess the EEOC’s conciliation efforts in enforcing Title VII— ending a circuit court split, and clarifying the “proper scope of review.”

In Mach Mining LLC v. Equal Employment Opportunity Commission, case number 13-1019, the parties battled over the EEOC’s conciliation tactics after the federal agency found probable cause that Mach Mining had discriminated against a group of female employees based on sex. The employer accused the EEOC of failing to bargain in good faith, instead of using “informal methods of conference, conciliation, and persuasion” as required by Title VII.

At oral argument in January, the justices expressed skepticism that the EEOC’s conciliation efforts should be shielded from judicial review, as it heard accusations that the EEOC was more interested in making headlines by rushing to the courthouse.

But, in their 9-0 opinion (authored by Justice Elena Kagan) on April 29, the court rejected the “flawed proposals” from both sides. The decision reflected an even-handed approach to balancing the need for judicial review and the deference to the EEOC’s “responsibility to eliminate unlawful workplace discrimination.”

More specifically, the court relied on Title VII itself for outlining the EEOC’s appropriate conduct: (1) the EEOC “must inform the employer about the specific allegation”; (2) in a notice that “properly describes both what the employer has done and which employees . . . have suffered as a result”; and (3) “engage the employer in some form of discussion . . .to give the employer an opportunity to remedy the allegedly discriminatory practice.”

Beyond that, the Supreme Court said, the EEOC has “abundant discretion” under the law to determine the nature and scope of conciliation discussions in any particular case, saying 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.”

The decision vacates a ruling from Seventh Circuit Court of Appeals (which had found that the EEOC’s conciliation was not subject to review), and remands the case to the lower court to apply this new standard.

For more information regarding this decision, please contact the Barnes & Thornburg Labor and Employment attorney with whom you work, or a leader of the firm’s Labor and Employment Department in the following offices:

Kenneth J. Yerkes
Department Chair
(317) 231-7513

John T.L. Koenig
(404) 264-4018

David B. Ritter
(312) 214-4862

William A. Nolan
(614) 628-1401

Mark S. Kittaka
Fort Wayne
(260) 425-4616

Robert W. Sikkel
Grand Rapids

Peter A. Morse
(317) 231-7794

Scott J. Witlin
Los Angeles
(310) 284-3777

Teresa L. Jakubowski
Washington, D.C.
(202) 371-6366

Janilyn Brouwer Daub
South Bend/Elkhart
(574) 237-1130

Visit us online at www.btlaw.com or @BTLawLE, and don’t forget to bookmark our blogs at www.btlaborelations.com and www.btcurrents.com.

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This Barnes & Thornburg LLP publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.



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