Yesterday, the Retail Litigation Center (RLC) submitted an amicus brief to the U.S. Court of Appeals for the Seventh Circuit in support of a lower court’s decision that courts are authorized by the statute to consider whether or not the Equal Employment Opportunity Commission (EEOC) fulfilled its statutory obligations to conciliate prior to filing suit. The brief was joined by the National Chamber Litigation Center and the National Federation of Independent Business.
In EEOC v Mach Mining, the EEOC brought a Title VII discrimination suit against the employer regarding its hiring practices. In response, Mach asserted that the EEOC had not fulfilled its pre-trial obligations to seek voluntary compliance from the employer through the conciliation process before initiating litigation. The U.S. District Court for the Southern District of Illinois agreed with Mach’s position, and certified the EEOC’s interlocutory appeal on this question, as well as a question on the appropriate standard of review, assuming that judicial review of conciliation is appropriate.
At issue here is the EEOC’s assertion that its pre-trial conduct is outside the scope of judicial review, even though every court that has considered the issue since the requirement was enacted 40 years ago has held otherwise. The RLC brief reviews the significant judicial predecent and the statutory history that demonstrate that EEOC compliance with its statutory duty is squarely within the court’s rights to review and subsequently enforce.
“The claim made by the EEOC, that text in Title VII precludes its compliance with statutory duty from review, is contradicted by more than four decades of precedent, as well as the legislative history,” said RLC President Deborah White. “Congress included a clear path the EEOC must follow, with litigation being a last resort. If courts cannot review whether or not the EEOC gave employers a meaningful opportunity to conciliate, the statutory requirements will be eviscerated.”
From the brief filed with the Court:
“Title VII requires the EEOC to ‘refrain from commencing a civil action until it has discharged its administrative duties,’ including by following an ‘integrated, multistep enforcement procedure.’”
“Each one of the deliberate steps in this statutory scheme––charge, notice, investigation, reasonable cause, conciliation–– [is] intended by Congress to be a condition precedent to the next succeeding step and ultimately legal action.”
“Fears––of a runaway, politicized agency beyond the reach of the federal courts––motivated Congress to scrap cease-and-desist authority for the EEOC and simultaneously to eliminate the barrier to judicial review of conciliation, the EEOC’s ‘most important function.’”
The complete brief can be found HERE. The amicus was drafted by Jones Day Attorneys Eric S. Dreiband, Shay Dvoretzky, Alison B. Marshall and Yaakov Roth.
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry. The RLC, whose members include some of the country’s largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.