Roberts Court Takes Middle Path in Latest Employer-Worker Discrimination Case

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Analysis Law and Policy

Roberts Court Takes Middle Path in Latest Employer-Worker Discrimination Case

Jessica Mason Pieklo

Overall, the conservative majority on the Roberts Court has made it clear that business interests are their interests. But when given another chance to hand corporate owners a big win last week, they hedged.

It’s fair to say employers have had a pretty easy go of it before the Roberts Court. In decision after decision, the nation’s highest court has sided with employers, whether it involves rolling back workplace protections against harassment or radically expanding corporate “personhood” to dodge the tax penalty associated with not complying with the birth control benefit. Overall, the conservative majority on the Roberts Court has made it clear that corporate interests are their interests. Which is what makes last week’s decision in Mach Mining v. Equal Employment Opportunity Commission (EEOC) so unusual: When given another chance to hand corporate owners a big win, they hedged.

In 2008, the EEOC accused Mach Mining, LLC of discriminating against women at its Johnston City, Illinois, coal mine after an unsuccessful female job applicant complained to the agency that the company had never hired a female miner. But the case isn’t about whether or not Mach Mining discriminated against women—it did, according to the EEOC and the lower courts—but whether or not the EEOC did enough to try and “conciliate,” or settle the claims against the company, before bringing suit.

In the Equal Employment Opportunity Act of 1972, Congress set out a detailed, multi-step process for the EEOC to enforce Title VII’s prohibitions on unlawful employment practices. The process begins when either a person claiming to be the victim of an unlawful employment action or the commission itself files a charge of unlawful employment discrimination with the EEOC. The EEOC then notifies the employer of the charge and begins an investigation into the alleged discriminatory conduct. If the EEOC determines that there is not reasonable cause to support the charge, it dismisses the charge and promptly notifies all parties involved. At that point, the individual who claimed discrimination may file his or her own lawsuit.

If the EEOC finds reasonable cause to believe that the charge is true, the statute directs the commission to “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” The statute further provides that if the EEOC has been unable to secure from the employer a conciliation agreement acceptable to the agency 30 days after the filing of the employment discrimination charge, the EEOC can sue the employer in federal court. Conciliation agreements vary from case-to-case but can include anything from the payment of damages to policy changes—whatever the agency deems necessary to remedy the discriminatory conduct.

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When it came to Mach Mining, the EEOC says it tried unsuccessfully from late 2010 to late 2011 to reach a settlement with the company. With no settlement in place, the agency filed suit, alleging the company engaged in a pattern or practice of unlawful employment discrimination and used employment practices that had a disparate impact on female applicants. Mach Mining denied the allegations; its answer filed with the court complained the agency did not do enough to try and settle the claims before filing its lawsuit. A federal appeals court disagreed, ruling in part that whether or not the agency took sufficient steps to settle the claims before filing suit is not the kind of thing courts have the power to second-guess. But the Supreme Court set aside that decision last week, unanimously ruling both that EEOC conciliation efforts are subject to judicial review and setting forth the standard for courts to apply in cases moving forward.

Writing for the Court, Justice Elena Kagan addressed the question of whether the EEOC’s conciliation efforts should be subject to judicial review in the first place, and if so, what the proper scope of judicial review should be. Mach Mining argued for a stringent review process, suggesting basically that the lack of an agreement in this case was evidence the EEOC had failed to conciliate. Meanwhile the Obama administration argued that the statute provided for no judicial review of the EEOC’s decision to end negotiations and file its lawsuit, because that is the kind of discretionary judgment call Congress empowered the agency to make. Justice Kagan rejected both approaches, charting instead a middle course where agency action is subject to some judicial review so as to prevent the agency from being completely self-governing, while preserving the spirit of the law that grants the EEOC wide discretion in managing its investigations and charges.

Having determined that EEOC conciliation efforts are subject to judicial review, Justice Kagan then set out to explain what that judicial review process should look like. Again, Justice Kagan’s opinion charts a middle path. The government argued that copies of a letter notifying employers of the charge against them, and of a letter notifying employers that conciliation efforts had failed and a lawsuit was forthcoming, were sufficient evidence that an attempt to conciliate had taken place. The Court disagreed, holding the letters alone are not enough proof. Instead, Kagan wrote, a court should be able to “verify” that an attempt had been made.

How would a court engage in such a verification? Mach Mining had argued courts should be required to take a “deep dive” into the conciliation process, even reviewing confidential negotiations. But the Court rejected that approach over concerns that too much review by courts would threaten the settlement process altogether. Instead, Justice Kagan’s opinion strikes a middle ground, holding that the EEOC needs to inform the employer about the specific allegation of discrimination and which employees (or what class of employees) have been injured as a result. The EEOC must also “try to engage the employer” beyond the initial information on the charges in oral or written communication to give the employer a chance to fix the allegedly discriminatory practice in its own. According to Kagan’s opinion, a reviewing court would be able to evaluate whether the EEOC attempted to confer about a charge, but not what happened during the negotiation—a limitation designed to preserve the confidentiality of the process.

Justice Kagan then explained how the EEOC could meet this new requirement that it negotiated “enough” with employers. According to Kagan, a sworn affidavit from the EEOC stating that it attempted to confer about a charge and that its efforts failed should be enough to show that it has met the conciliation requirements. But, if an employer disputes the facts set out in the EEOC’s affidavit, it can provide an affidavit of its own or “other credible evidence” that the EEOC either did not provide the employer with the requisite information about the discrimination charges or attempt to conciliate. According to the opinion, a federal court would then hold a hearing to determine if the agency had met its conciliation requirements.

Like many employment law decisions, Mach Mining is heavy on the procedural requirements parties must meet in order to keep their legal claims alive. And let’s be honest: Procedural cases like these are not nearly as engaging as the cases that get into the nuts and bolts of actual discriminatory scenarios, like employee harassment in Vance. But decisions like these are critically important because they set out the hoops parties must jump through to have their day in court. Mach Mining is no different. It still creates another way for employers to drag out the litigation process by disputing whether or not the EEOC tried hard enough to settle before suing. That will slow the case down and increase the costs to fight the discrimination, both for the employee who suffered it and the agency charged to eradicate it.

The fact that it was a unanimous decision and that neither Mach Mining nor the Obama administration got their way, however, suggests the liberal justices were able to pull the conservative majority to a compromise outcome rather than simply hand employers another complete victory like the conservative wing did in Hobby Lobby. So does the fact that Justice Kagan, one of the Court’s most effective pragmatists, authored the opinion. 

Also, judicial review of agency action like the kind at issue here can be a good thing. These cases should be about good governance, rather than creating more ways for employers to flout labor and civil rights laws or more incentives for government agencies to try and self-police. So on that point, I’ll applaud Kagan’s decision for attempting to carve out that difference.

That said, I’m also not so naive as to think employers won’t see this as another procedural point to exploit when defending discriminatory business practices either.