Employment & Labor Insider

Just how much of a duty to conciliate does the Equal Employment Opportunity Commission have after the Supreme Court's decision last year in Mach Mining?

Hardly any, it appears.

In Mach Mining, the Supreme Court decided that courts did have the authority to review the agency's conciliation efforts (which caused employers to claim it as an "employer's victory") but said that the scope of the review was very limited (which caused the EEOC to claim it as a victory).

As it's shaping up in the lower courts now, it appears that Mach Mining may have been more of a "win" for the EEOC than for employers.

Here's a scenario: You get a charge of discrimination that doesn't go well. You get the dreaded call from the investigator telling you that "reasonable cause" has been found. A few days later, you get a determination letter in the mail, summarizing the EEOC's basis for its "cause" finding.

You want to resolve the case and move on. The charging party was fired three months ago, and she was a part-time employee making minimum wage, so your back pay is not more than $5,000.

The EEOC sends you a proposed conciliation agreement, requiring you to post a notice, conduct training, report on any allegations of discrimination for the next three years -- and pay $300,000.

You tell the EEOC, We'll pay $5,000, and we'll agree to posting, training, and reporting. We'll even give her a neutral reference. We're not closing the door to paying more than $5K (even though we didn't do anything wrong), but we'll need for you to come way down from $300,000, or at least explain to us how you arrived at that figure.

A few days later, you get a "Failure of Conciliation" notice, and a few months later the EEOC sues you.

Can you get the lawsuit dismissed on the ground that the EEOC did not conciliate?

Probably not.

It's not enough for the EEOC to simply allege that it attempted conciliation and that conciliation failed. It has to present evidence (which can be as simple as an affidavit from an EEOC official) that something went on between those two events.

But the EEOC may not have to prove more than that.

In other words, an employer can't get a lawsuit dismissed on the ground that the EEOC didn't make a "reasonable" offer, didn't bargain "in good faith," didn't haggle, or didn't disclose the basis for its bargaining position.

The EEOC is perfectly within its rights to make an unreasonable, "take-it-or-leave-it" offer and then sue you when you "leave it."

In fact, you may not even be allowed to submit evidence in court that the EEOC drove a hard bargain - the EEOC will move to strike your evidence on the ground that conciliation negotiations are confidential, and the court is likely to grant the EEOC's motion.

Don't take my word for it. See Exhibit A, Exhibit B, and Exhibit C (Exhibit C is the lower court's Mach Mining decision after the case was remanded by the Supreme Court).

There is at least one court decision to the contrary, but nobody else seems to like it.

The moral? The EEOC's failure to conciliate may not be much of a defense for most employers.