The Retail Litigation Center (RLC), joined by the Chamber of Commerce of the United States of America, the National Federation of Independent Business Small Business Legal Center and the American Trucking Association, Inc., filed an amici brief urging the U.S. Supreme Court to overturn a lower court's decision placing the Equal Employment Opportunity Commission's (EEOC's) required pre-suit conciliation obligation outside the scope of judicial review.
The EEOC brought a Title VII discrimination suit against employer Mach Mining regarding its hiring practices. The employer asserted that the EEOC had not fulfilled its obligation to seek voluntary compliance prior to initiating litigation. The EEOC, in response, asserted that review of its pretrial obligations was beyond the scope of judicial review.
The RLC brief filed today disputes the EEOC claim and the opinion of the United States Court of Appeals for the Seventh Circuit supporting it, echoing the amicus brief filed in support of certiorari earlier this year. The brief provides important examples of EEOC "cutting procedural corners" where it was critical for the courts to step in.
Further, the RLC brief underscores the importance of a predictable and unified legal opinion on this issue, urging the Supreme Court to decide in favor of judicial review to preserve the opportunity for American businesses to avoid expensive and prolonged litigation by settling voluntarily with the EEOC.
"Our constitutional system of checks and balances depends on having judicial oversight of executive branch agencies to make sure that the agencies are fulfilling the obligations that Congress set forth," said RLC President Deborah White. "The Seventh Circuit's view of this system allows the EEOC to be the sole judge of whether it is properly interpreting the duties that Congress set forth."
The RLC has filed briefs in this case with the United States Court of Appeals for the Seventh Circuit and the Supreme Court of the United States.
From the brief filed with the Supreme Court:
"...A Congress worried about giving a "blank legislative check" to the "crusaders" at the EEOC would hardly have intended for the judicial branch to turn a blind eye when that agency ignores the statutory constraints imposed by Congress."
"Amici—as representatives of employers who face EEOC investigations and attempt to conciliate with the agency in an effort to both avoid litigation and redress any actual wrongdoing—are ideally situated to identify flaws in the Seventh Circuit's premises, both as to how the EEOC acts in the real world and as to employers' own practical incentives."
"Affirming the decision below will therefore have a profoundly negative effect on voluntary resolution of employment disputes—harming employers and employees alike, and also undermining congressional intent. As Congress well understood, the best time to settle these disputes is before they reach court, before they attract public scrutiny, and before the parties become litigation adversaries. All those advantages are that is lost if the EEOC sues first and negotiates later."
"In short, there is nothing unusual about judicial review of agency behavior; there is no reason why courts cannot play their traditional role here; and such review is exactly what Congress wanted."
The complete brief can be found HERE. The brief was drafted by Jones Day attorneys Eric S. Dreiband, Shay Dvoretzky and Yaakov M. 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.