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Can the EEOC Be Trusted to Police Its Own Compliance?
Under Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission (EEOC) has an express statutory duty to attempt to secure, in good faith, a conciliation agreement with an employer as a precondition to filing a lawsuit. See 42 U.S.C. ' 2000(e)-5(f)(1). This conciliation process often works to the benefit of employers, the Commission, and the individuals whom it represents by affording them an opportunity to resolve their disputes without the need for protracted and costly litigation.
In some cases, however, the EEOC has approached conciliation in a “take-it-or-leave-it” manner, making unreasonable demands while threatening to file suit and issue a press release, which can inflict significant reputational harm on the employer. Take, for example, EEOC v. Ruby Tuesday, Inc., where the EEOC demanded that a restaurant, which was the subject of a sexual discrimination charge, pay more than $6 million to resolve the matter, but gave the employer less than two weeks to accept before the EEOC rushed to the courthouse. 919 F. Supp. 2d 587 (W.D. Pa. 2013).
This month, the U.S. Supreme Court will hear oral argument in a closely watched case, Mach Mining, LLC v. EEOC (No. 13-1019), which poses the question of whether employers may challenge in court the EEOC's filing of a lawsuit on the basis that the Commission failed to attempt resolution in good faith. If the EEOC ' which argues that its compliance with its statutory obligation is immune from judicial review ' wins the day, then the Commission will be able to use the threat of litigation, and attendant reputational harm, as a cudgel to secure acquiescence to what may be unreasonable demands. If Mach Mining wins, employers will at least have recourse to judicial oversight to determine whether the Commission's conciliation efforts were made in good faith, which should help rein in overzealous EEOC officials.
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