The facts of the case are that Brooke Petkas and a class of female applicants for non-office jobs at Mach Mining sued Mach Mining, arguing that the company had never hired even a single female for non-office jobs. In fact, the company did not even have a women’s bathroom for mining-related jobs. Sounds like a strong case --- but it might be awhile before these facts are tried. The issue for present purposes is that Mach Mining argued that the EEOC must make a “good faith” attempt at conciliation after issuing a reasonable cause decision and failed to do so in this case. The Supreme Court heard oral arguments in this case on 1/13/15.
The reason for the Supreme Court review is that the 7th Circuit ruled, essentially, that the EEOC is free to do whatever it wishes to carry out its Congressionally mandated obligation to conciliate after a reasonable cause decision --- no questions asked – thus overruling the lower court in this case and disagreeing with rulings in eight other circuits (see EEOC v. Mach Mining [2013 738 F.3d 171]). What’s interesting about this case is that there are distinctively different standards among the courts that favor judicial scrutiny of EEOC conciliation procedures, which I will call light, moderate, and heavy.
The light standard is termed the “deferential standard,” and it only required a determination that the EEOC made an attempt to conciliate. This standard leaves the substance of the conciliation completely at the discretion of the EEOC.
The moderate standard required proof of a “good faith” attempt at conciliation, without permitting courts to examine the details of offers and counteroffers or impose what agreements should be reached.
The heavy standard involves a three-step proof in which the EEOC must (1) outline for the employer why the EEOC believes there is reasonable cause; (2) offer an opportunity to comply voluntarily; and (3) respond reasonably and flexibly to reasonable employer attitudes. This standard calls into question the reasonableness and responsiveness of the EEOC under virtually all circumstances.
My reading of the oral arguments is that the majority of justices disagree with the 7th Circuit ruling in the EEOC v. Mach case, and that if there is any favorite (based on my opinion) it will likely be the moderate “good faith” standard.
There you go … just stuck my neck out. Stay tuned.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology