The ruling was handed down on 4/29/15 [2015 U.S. Lexis 2984]. I previously reported on the oral arguments in this case in an Alert dated 1/19/15. As reported in that Alert, a woman, Brooke Petkas, and a class of female applicants for non-office jobs at Mach Mining sued because the company had never hired a female for non-office jobs. Indeed, the company did not even have a women’s bathroom for mining-related jobs. Mach Mining argued that the EEOC was required to conciliate with the company in good faith.
The requirement for EEOC mediation and conciliation is written into Title VII statute and the question in this case is whether, and under what standard, a claim that the EEOC did not fulfill its responsibility should be assessed. The Supreme Court reviewed the case because the district court ruled that the “adequacy of the Commission’s efforts” is reviewable, but the 7th Circuit reversed and held that the EEOC’s “statutory conciliation obligation” is not reviewable. Agreeing with the 7th Circuit, the EEOC’s position was that its conciliation process is not reviewable. In contrast, Mach Mining’s position is that the EEOC must let the employer know the minimum award the EEOC would accept. Mach mining also argued that the EEOC is obligated to lay out “the factual and legal basis” for its positions and divulge calculations underlining its monetary request. In a unanimous ruling delivered by Justice Kagan, neither argument was favored.
In the January 2015 Alert, I noted that the 7th Circuit’s ruling was only one in which total deference was granted to the EEOC. Other circuits were divided on this issue and three different standards were cited, which I termed light, medium, and heavy.
The light standard, which I termed the “deferential standard”, only required a determination that the EEOC made an attempt to conciliate, leaving 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 involved a three-step proof in which the EEOC must (1) outline for the 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. The latter standard is most consistent with Mach Mining’s position.
I suggested that the moderate standard would be favored by the Supreme Court. Turns out, that the standard favored by Justice Kagan reads more like a compromise between the light and moderate standard. I’ll let you judge. According to Justice Kagan:
The proper scope of review thus matches the terms of Title VII's conciliation provision. In order to comply with that provision, the EEOC must inform the employer about the specific discrimination allegation. Such notice must describe what the employer has done and which employees (or class of employees) have suffered. And the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.
What makes this standard somewhat on the lighter (than moderate) side is that Kagan stated that “A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.”
Two other points are worth noting. First, the conditions under which a defendant may challenge whether this standard is met requires “concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim.” And second, the appropriate remedy for a successful challenge is to go back to the beginning and “undertake the mandated conciliation efforts.”
In short, the 7th Circuit ruling was vacated and remanded for determination of whether the EEOC met its burden. Regardless of what that outcome is, it’s clear that Mach Mining cannot mount an ultimate defense based upon its challenge. Stated differently, this case will likely go to trial unless, of course, mediation leads to a conciliation agreement between the EEOC and Mach Mining.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology