On April 29, the U.S. Supreme Court issued its unanimous decision in Mach Mining v. EEOC, a case that set new standards for challenging whether the EEOC engaged in a good-faith conciliation process before suing. In the wake of the decision, employers can expect more pre-litigation outreach from the EEOC.
By law, the EEOC is supposed to inform employers of charges against them and engage in conciliation. The idea is that before an employer has to defend itself in court against a powerful federal agency, it should have an opportunity to know what the charges are and to correct the discrimination or harassment problem.
The case: The EEOC received a sex discrimination complaint against Illinois-based Mach Mining. It concluded the claim had merit and sent a letter to the parties inviting them to conciliation. The EEOC told Mach Mining it would be in touch. The next time Mach heard from the EEOC was in a letter stating that conciliation efforts had failed—a troublesome finding since Mach had neither participated in nor even known of any conciliation efforts. The EEOC sued anyway.
Mach Mining said the EEOC had not attempted good-faith conciliation and asked the court to review the process. The EEOC argued that its decisions could not be legally challenged.
The Supreme Court disagreed. It ruled that a federal court can be asked to determine if the EEOC told the employer about the charges and followed up by discussing the allegations with the employer. If that didn’t happen, the employer may have a chance to start over using conciliation. (Mach Mining, LLC v. EEOC, No. 13-1019, U.S., Supreme Court, 2015)
How conciliation should now work: If challenged after filing suit, the EEOC will have to provide an affidavit outlining its conciliation efforts. It won’t have to provide any details on what was discussed, since that’s confidential. If the employer disagrees, it can file its own affidavit or offer other evidence challenging that the EEOC didn’t provide basic information about the claim or that it didn’t reach out. The court can then order another conciliation attempt before litigation can proceed.