By Lorene D. Park, J.D. On remand following a Supreme Court ruling, a federal district court in Illinois found that the EEOC satisfied the two-part Mach Mining test because it provided the required information to an employer about a sex discrimination charge against it and attempted to engage in a discussion on conciliation. The agency was therefore granted partial summary judgment on the employer’s affirmative defense, which asserted that the EEOC failed to conciliate in good faith (EEOC v. Mach Mining, LLC, January 19, 2016, Gilbert, J.). The EEOC filed suit on behalf of an individual claimant and a class of female applicants who were denied non-office jobs at Mach Mining. The agency claimed the company “has never hired a single female for a mining-related position,” and “did not even have a women’s bathroom on its mining premises.” The complaint alleged a pattern or practice of sex discrimination since at least January 1, 2006. Mach Mining test on EEOC’s conciliation efforts. In response, Mach Mining asserted an affirmative defense that the EEOC failed to conciliate in good faith. The agency argued that its conciliation efforts were not subject to judicial review. That issue eventually went to the Supreme Court, which held in an April 29, 2015, decision that Title VII authorizes judicial review of the EEOC’s efforts to satisfy its statutory duty. However, the scope of review is narrow, limited to ensuring (1) that the agency informed the employer of the specific allegation, describing both what the employer did and which employees (or class of employees) suffered as a result; and (2) that the agency tried to engage the employer in a discussion (written or oral), giving the employer a chance to remedy the allegedly discriminatory practice. EEOC provided required information. Following remand, the EEOC again sought partial summary judgment on the conciliation affirmative defense. Applying the Supreme Court’s two-part test, the court here reviewed the reasonable cause letter sent by the agency to Mach Mining, which stated: “[T]he evidence obtained during the course of the investigation establishes reasonable cause to believe that Respondent discriminated against Charging Party and a class of female applicants, because of their sex, in that Respondent failed to recruit and hire them, in violation of Title VII.” In the court’s view, this satisfied the first prong because it described what Mach Mining had allegedly done (failed to recruit and hire because of gender) and who suffered as a result (the charging party and a class of female applicants). EEOC tried to engage in conciliation discussion. The second prong, noted the court, was a more difficult review. The Supreme Court indicated that a sworn affidavit from the EEOC stating that it has performed its obligations, but that its efforts failed, will usually suffice to show it has met the conciliation requirement. However, if “the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.” Here, the EEOC provided a declaration stating it engaged in oral and written communications with Mach Mining to provide an opportunity to remedy the discriminatory practices described in the determination. Mach Mining also produced an affidavit, but it did not state that the EEOC failed to conciliate in any manner—only that the employer requested information necessary to determine if the agency satisfied its pre-suit conciliation obligations and the employer’s requests for admission. The court also noted that while Mach Mining argued that the EEOC failed to provide it an “opportunity to remedy,” the affidavit did not attest to that statement. In the court’s view, the employer merely complained that the EEOC didn’t give it all the information it wanted. The company did not produce evidence that the EEOC failed to provide required information about the charge or failed to attempt to engage in a discussion about conciliation. Because judicial review focuses on whether the EEOC endeavored to conciliate and not on the extent of conciliation, the agency met the two-part Mach Mining test and was entitled to partial summary judgment on the conciliation affirmative defense.
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