Guest Workplace Prof Blog Post: Feldblum on Mach Mining

We are privileged to present as a guest blogger today, Chai R. Feldblum.  Chai is a Commissioner on the federal Equal Employment Opportunity Commission (EEOC), but is writing here on a recent 7th Circuit decision for herself only.  Her post is entitled: On Mach Mining.

Much attention has been paid to the Seventh Circuit’s opinion in EEOC v. Mach Mining.  That is how it should be.  Judge David Hamilton’s opinion for the panel is brilliant, concise, and correct.  The women at the center of the lawsuit who were seeking jobs in the mining industry will now finally have their day in court.

Instead of following precedents of other courts of appeal that have decided or presumed that courts can review the sufficiency of EEOC’s conciliation process, Judge Hamilton went back to first principles of statutory construction.  As his opinion noted:

The language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.  Finding in Title VII an implied failure-to-conciliate defense adds to that statute an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle.  An implied failure-to-conciliate defense also runs flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process as "evidence in a subsequent proceeding." 42 U.S.C. § 2000e-5(b).  We therefore disagree with our colleagues in other circuits and hold that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.

While much attention has been paid to the fact that the Seventh Circuit broke from the pack in deciding the legal issue before it, less attention has been paid to the weight the Seventh Circuit placed on the internal "meaningful scrutiny" and oversight that the Commission applies to its conciliation process.  As Judge Hamilton explained:

[T]he commissioners who head the agency are appointed by the President with the advice and consent of the Senate.  In short, even without the judiciary trying to monitor the EEOC’s efforts at conciliation, those efforts are subject to meaningful scrutiny.

As a former professor of statutory interpretation, I give the Mach Mining decision an A for careful and thoughtful statutory analysis.  On a more practical level, as a sitting Commissioner of the EEOC, I welcome the court’s emphasis on the meaningful oversight Commissioners provide with regard to our staff’s conciliation efforts.  That is something I have been a strong supporter of since I joined the Commission.

My commitment to those efforts comes directly from the language of Title VII:

If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. 42 U.S.C. § 2000e-5(b).

The five of us who make up the Commission obviously cannot investigate, find cause and conciliate on the thousands of charges we receive each year.  Thus, in its regulations, the Commission has delegated authority to its field staff to investigate charges, issue findings of cause, and engage in the conciliation process, 29 CFR §§1601.15(a), .21(d), .24(b).  

This is how it should be.  Delegation is good governance.  But the Commission is ultimately responsible for all actions taken in its name.  Thus, our delegation to our field staff is, and must be, accompanied by reporting and accountability back to the Commission. Our Strategic Plan for 2012-2016 and our Strategic Enforcement Plan of 2013-2016 include components that enhance such accountability.

Judge Hamilton was correct that the language of Title VII, which provides no standard for the conciliation process, is not susceptible of judicial review of “whether the EEOC tried hard enough to settle.”  Rather, the statutory language provides significant deference to the agency in carrying out its obligation to “endeavor to eliminate” alleged unlawful employment practice by “informal methods of conference, conciliation, and persuasion.”  That deference presumes and is reinforced by active Commission oversight to ensure that the letter and the spirit of the statutory language continue to be carried out.

[The opinions expressed in this post are those of Commissioner Feldblum alone and do not reflect the opinions of the EEOC, the Federal Government, or any individual attorney.  The opinions provided are for informational purposes only and are not for the purpose of providing legal advice.]

PS