Big News for Employers: Courts review EEOC’s duties to conciliate and investigate

By Kelline R. Linton,


EEOC’s Duty to Conciliate
Last week, a unanimous U.S. Supreme Court held that courts have the authority to review whether the EEOC satisfies its pre-suit obligation to attempt conciliation. (Mach Mining, LLC v. EEOC, No. 13-1019 (April 29, 2015)).


Under federal law, the EEOC is obligated to investigate charges of discrimination and/or retaliation. If the EEOC finds “reasonable cause” to believe the charges have merit, it must attempt to resolve the dispute between the parties before filing a lawsuit on behalf of the complainant. This is the EEOC’s duty to conciliate.


In Mach Mining, the EEOC found reasonable cause to believe a complainant’s charge that the employer failed to hire her because she was female. The EEOC sent a letter to the parties inviting them to participate in “informal methods” to resolve the matter and indicated that the EEOC would be in contact to begin the conciliation process. A year later, the EEOC sent a second letter that stated conciliation efforts were unsuccessful. The record contained no evidence of any other conciliation efforts. After the EEOC filed a lawsuit, the employer argued that the EEOC failed to conciliate in good faith. The EEOC moved for summary judgment on the basis that the court lacked the authority to review conciliation efforts. The U.S. Supreme Court ultimately disagreed.


The Court held that courts have the authority to review the EEOC’s mandatory duty to conciliate. The scope of such a review is limited. However, the mere two letters issued by the EEOC in this case were insufficient to meet the EEOC’s conciliation obligation.


What does this mean for employers? The Mach Mining decision is a warning that the EEOC must take real efforts to resolve disputes before suing. The EEOC must “tell the employer about the claim—essentially, what practice has harmed which person or class.” The EEOC must also “provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.”


EEOC’s Duty to Investigate
In a second case on the EEOC’s pre-suit obligations, the U.S. Court of Appeals for the Second Circuit is set to hear arguments Tuesday to determine to what extent a court can review the EEOC’s duty to investigate employment bias claims before filing suit. (EEOC v. Sterling Jewelers, Inc., No. 14-1782).


In Sterling Jewelers, the EEOC accused Sterling of a nationwide pattern of discrimination against its female employees, claiming that the company provided worse pay and fewer opportunities to females. The lower court dismissed the case after finding that the EEOC failed to conduct a national investigation before filing suit. On appeal, the EEOC is arguing that courts are prohibited from reviewing the sufficiency of the EEOC’s investigations.


What does this mean for employers? The recent Mach Mining decision highlights the current differences between the EEOC’s conciliation and investigation duties. We will provide additional guidance about the EEOC’s duty to investigate once the court issues a final decision; however, employers should be aware that the courts are taking an interest in ensuring that the EEOC is complying with its pre-suit obligations before it files suit.