Supreme Court Considers EEOC Tactics in Mach Mining Case

Author: David B. Weisenfeld, XpertHR Legal Editor

January 15, 2015

The Supreme Court heard arguments this week in EEOC v. Mach Mining involving how far the EEOC must go to try to resolve discrimination claims before suing an employer. Under Title VII of the Civil Rights Act, the agency is required to attempt conciliation with an employer before filing a complaint.

The EEOC had sued an Illinois company, Mach Mining, for failing to hire qualified female job applicants. However, the company counters that the lawsuit should be dismissed because the agency never made a good-faith effort to reach a settlement before taking Mach Mining to court.

Representing the government, Assistant Solicitor General Nicole Shaharsky told the Supreme Court that the scope of judicial review is quite limited when it comes to the conciliation process. She argued, "Mini-trials about conciliation efforts take up significant court resources and are not supposed to happen," citing confidentiality requirements.

But at least some members of the Court were skeptical of that point. For instance, Chief Justice John Roberts asked Shaharsky, "What if the employer says nobody contacted me; it never happened. Can you get judicial review of that claim?" The Chief Justice also said he was troubled by the idea that the government can do something and the Court cannot even look at whether the government has complied with the law.

However, Justices Elena Kagan and Ruth Bader Ginsburg suggested that the EEOC has a good amount of discretion in determining whether litigation is necessary.

Speaking to XpertHR following the arguments, District of Columbia attorney Rae Vann said Title VII does contemplate some judicial review. Vann serves as General Counsel of the Equal Employment Advisory Council (EEAC), an employer association. She filed an amicus brief on behalf of the EEAC and the Society for Human Resource Management (SHRM) in the case in support of Mach Mining.

"A ruling for the EEOC would arm the agency with a powerful weapon that it could use to force employers into untenable settlements," Vann said. "What level of review is appropriate was the key question for the justices." Addressing the EEOC's confidentiality concerns, Vann added, "The confidentiality provision is not intended to shield the process from judicial review."

The Chicago-based 7th Circuit Court of Appeals had sided with the EEOC, finding that a "failure to conciliate" defense would give employers an avenue to avoid liability for illegal discrimination. But other appellate courts have reached contrary results.

Vann called the case "significant" because the EEOC's Chicago office has brought a large number of discrimination cases. She said a reversal "would give employers some recourse."

A decision in Mach Mining v. EEOC is expected before the end of the Supreme Court's term in June.