Judicial Review of the EEOC's Duty to Conciliate

47 Pages Posted: 20 Nov 2014 Last revised: 24 Sep 2015

See all articles by Stephanie M. Greene

Stephanie M. Greene

Boston College - Carroll School of Management

Christine Neylon O'Brien

Boston College - Carroll School of Management

Date Written: November 17, 2014

Abstract

Fifty years after the enactment of Title VII of the Civil Rights Act of 1964, the federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission’s pre-suit obligations. Courts currently disagree on: whether the EEOC’s conciliation efforts are subject to judicial review; what the standard of judicial review should be; what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and whether the EEOC may bring suit on behalf of unidentified individuals under Section 706. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to hold that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. On June 30, 2014, the Supreme Court granted Mach Mining’s petition for certiorari and a decision is expected in the upcoming term. The Court’s decision will resolve some of the differences between the circuits and may indicate how courts should resolve related issues. This article maintains that the Supreme Court should affirm the Seventh Circuit’s decision. Supreme Court precedent emphasizes that the EEOC’s efforts should be focused on resolving the merits of discrimination claims and supports the conclusion that judicial review should be denied because it results in delays and distractions from Title VII’s objectives. If the Court decides that judicial review of the conciliation process is required, the EEOC will face a new landscape that will disturb Title VII’s mandate that the conciliation process be informal, confidential, and a matter of agency discretion.

Keywords: Judicial Review, EEOC, Title VII of the Civil Rights Act of 1964, sex discrimination, Mach Mining, Duty to Conciliate, administrative agency process, statutory language, informal process, confidential, agency discretion, pre-suit obligation, Circuit Split, certiorari granted, Supreme Court

JEL Classification: K20, K23, K29, K40, K41, K42

Suggested Citation

Greene, Stephanie M. and O'Brien, Christine Neylon, Judicial Review of the EEOC's Duty to Conciliate (November 17, 2014). The Penn State Law Review, Vol. 119, Issue 4, pp. 837-883, Fall 2015, , Boston College Law School Legal Studies Research Paper No. 340, Available at SSRN: https://ssrn.com/abstract=2527949 or http://dx.doi.org/10.2139/ssrn.2527949

Stephanie M. Greene (Contact Author)

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

Christine Neylon O'Brien

Boston College - Carroll School of Management ( email )

140 Commonwealth Avenue
Business Law Department
Chestnut Hill, MA 02467
United States
(617) 552-0413 (Phone)
(617) 552-0414 (Fax)

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