EEOC Concilliation Efforts Are Judicially Reviewable
April 29th, 2015 in a unanimous decision, the U.S. Supreme Court ruled that the EEOC attempts to conciliate a discrimination charge prior to filing a lawsuit are reviewable by the lower courts.
The Supreme Court decision overturned a previous decision by the U.S. Court of Appeals that held the EEOC’s conciliation efforts during the administrative process were NOT judicially reviewable and NOT an affirmative defense to be used against the EEOC.
Title VII allows the EEOC “wide latitude” to choose which conciliation steps to take. The Supreme Court found that the statute also provides “concrete standards” for what the conciliation process contain.
The court held the following “concrete standards” necessary during the conciliation process:
Although the Supreme Court ruled that judicial review of these requirements is suitable, the scope of such a judicial review is “narrow”. A lower court will only conduct a “barebones review” of the EEOC’s conciliation process, and the EEOC will have “expansive discretion” to decide how to manage the conciliation process and when to end their conciliation efforts.
If an employer provides direct evidence that the EEOC did not provide the information listed above in steps a – d, thatthe EEOC did not provide the required information about the charge, nor to engage in a discussion about conciliating the complaint, the appropriate remedy is to require the EEOC to commence the mandated conciliation efforts.
While some courts have in the past imposed the requirement that the lawsuit be dismissed, based on the EEOC’s failure to engage in the conciliation process, that measure seems to have been eliminated by this Supreme Court’s decision.