The Underlying Matter

After an EEOC finding of reasonable cause to believe discrimination had occurred, the EEOC sent two letters to the subject employer: one notifying said employer of the impending conciliation process and subsequently, one that the conciliation process had been unsuccessful such that further efforts would prove futile. The EEOC then sued the employer who asserted that the EEOC had not acted in good faith. The EEOC’s motion for summary judgment which claimed it’s efforts could not be subjected to judicial review, was denied. The District Court ruled that courts should indeed evaluate the reasonableness and sincerity of the EEOC’s negotiation efforts. The Seventh Circuit Court of Appeals reversed, ruling that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.  In 2014, the Supreme Court agreed to hear the case.

The News

The United States Supreme Court ruled this week that the EEOC’s efforts to resolve discrimination suits, prior to litigation, are subject to limited judicial review. The Court has set forth a narrow scope of review, allowing courts only to enforce the statutorily mandated employer notice and opportunity for voluntary conciliation.

The Court noted: “Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the court’s authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims.”  The Court ruled that in order for the EEOC to have complied, it must have informed the employer about the discriminatory practice by specifically describing the incident(s) and claim suffered, and that it must attempt discussions with the employer in an effort towards achieving compliance, giving the employer the opportunity to remedy the alleged offense. Failure to do so requires the EEOC return to the bargaining table; it does not result in a dismissal of the case. Notably, courts will not examine whether the EEOC was reasonable or flexible in its conciliation efforts.

The Reality

This is narrow ruling and a limited victory for employers. It does make clear, however, that the EEOC’s conciliatory efforts are subject to review thereby providing employers with a means of challenging the sufficiency of said efforts, or lack thereof as the case may be.

The Takeaway

Exhaustion of administrative remedies is a requirement under many federal statutes; this case makes clear that either party may challenge the sufficiency of that compliance, including efforts towards resolution of claims.