Today, the Retail Litigation Center (RLC), joined by the United States Chamber of Commerce and the National Federation of Independent Businesses (NFIB), filed an amicus brief urging the U.S. Supreme Court to remind the lower courts of the importance of judicial review of federal agency actions, such as the Equal Employment Opportunity Commission’s (EEOC’s) statutory duty to conciliate in a meaningful fashion at issue in this case.
Here, the EEOC brought a Title VII discrimination suit against employer, Mach Mining, regarding its hiring practices. In EEOC v. Mach Mining, the employer asserted that the EEOC had not fulfilled its legal obligation to seek 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 disputes the EEOC claim, highlighting the statutory history that demonstrates that EEOC compliance with its statutory duty is well within the court’s rights to review and enforce, a fact that every court addressing this issue in the past 40 years has agreed upon, with the exception of the Seventh Circuit.
“Judicial review is essential to ensure that conciliation is meaningful,” said RLC President Deborah White. “The Seventh Circuit’s claim that removing the EEOC’s pre-suit efforts from judicial oversight would promote conciliation fails to recognize real world incentives of employers to settle litigation before suit. Aside from the illogical argument advanced by the Seventh Circuit, 40 years of precedent and the statute itself clearly place the EEOC conciliatory duty within the scope of judicial review.”
The RLC previously filed a brief on this case with the United States Court of Appeals for the Seventh Circuit.
From the amicus brief filed with the Supreme Court:
“Title VII’s enforcement history illustrates that the EEOC too often bypasses meaningful conciliation, preferring to sue first and negotiate later. But Congress understood that the best chance to settle a dispute is before litigation and therefore directed the EEOC to conciliate before filing a suit. That is when employers are most eager to settle, to avoid the stigma of being labeled publicly as violators of civil rights.”
“The Seventh Circuit’s decision is also legally unsupportable. First, it lacks any limiting principle, offering blind trust in an executive agency and relying on the faint hope of congressional oversight.…Second, the decision’s conclusion is refuted by legislative history, as Congress rejected a bill that expressly made conciliation nonreviewable…Third, the court’s insistence that no judicially manageable standard is possible ignores the forty-year body of jurisprudence.”
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.