Can the EEOC Be Trusted to Police Its Own Compliance?

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).

In January, the U.S. Supreme Court was scheduled to 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.