EEOC Met Obligation to Conciliate Sex Bias Claim

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By Kevin McGowan

June 1 — The Equal Employment Opportunity Commission met its obligation to try to settle, or conciliate, a sex discrimination claim before suing a health-care provider, a federal district court in Maryland decided ( EEOC v. Dimensions Healthcare Sys. , 2016 BL 169980, D. Md., No 15-2342, 5/27/16 ).

After the EEOC sued alleging Dimensions Healthcare System denied a promotion to a female employee because of her sex, the company contended the agency hadn't adequately tried to conciliate the claim before the lawsuit. The EEOC didn't meet its pre-lawsuit obligations under Title VII of the 1964 Civil Rights Act, Dimensions argued.

Applying Mach Mining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (U.S. 2015) (82 DLR AA-1, 4/29/15), the district court said evidence that the EEOC invited Dimensions to “informally resolve” the sex bias claim, sent a conciliation proposal to the employer and informed Dimensions that conciliation had failed after two months had elapsed satisfied the agency's obligation.

“We are pleased that courts consistently apply” Mach Mining in a way “that recognizes the ‘expansive discretion' the [EEOC] has in the conciliation process, and that ensures the focus of commission litigation is on the merits of the case,” EEOC General Counsel P. David Lopez said in a June 1 e-mail to Bloomberg BNA.

Management attorney Gerald Maatman said the district court's ruling amounts to a “hands off approach” that defers to the EEOC’s “simply going through the motions to conciliate.”

“Under this interpretation of Mach Mining, simply conveying a settlement demand and allowing time for the employer to receive it is virtually enough to satisfy the statutory obligation,” said Maatman, of Seyfarth Shaw in Chicago.

Other district courts “have required the EEOC to show evidence of a practical, informed effort to conciliate,” Maatman told Bloomberg BNA June 1.

But employers now should expect the EEOC to cite the Dimensions Healthcare ruling “time and again” when they raise failure-to-conciliate defenses, he said.

Only ‘Barebones' Review Permitted

The U.S. Supreme Court in Mach Mining said the EEOC's duty to conciliate is subject to judicial review, but that review is “exceptionally narrow,” Judge George J. Hazel wrote.

The Supreme Court said a court reviews only whether the EEOC “informed the employer about the specific allegation” and the agency “tried to engage the employer in some form of discussion” to try to remedy the alleged discriminatory practice.

The EEOC must provide notice that “properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result,” the court said in Mach Mining. But courts shouldn't inquire into whether the EEOC made a “good faith” effort at conciliation because that would infringe the considerable discretion that Congress gave the EEOC under Title VII, the Supreme Court said.

The Mach Mining court said a “relatively barebones” review is all that's allowable when considering a failure to conciliate defense, the district court said.

An EEOC affidavit that it has performed its statutory obligations usually will suffice, the Supreme Court said.

EEOC Declaration Held Sufficient

The EEOC met those criteria here based on an agency field office director's sworn declaration, the district court decided.

The agency indicated that once it found reasonable cause to support the sex bias claim, it invited Dimensions to informally resolve the claim. Over a two-month period, the EEOC “engaged in communications” with Dimensions aimed at a voluntary settlement, including a conciliation proposal. But on July 7, 2015, the EEOC notified Dimensions that the conciliation effort had been unsuccessful and that further efforts would be unproductive, the agency said.

“This evidence is sufficient for the EEOC to satisfy its burden to establish that it ‘endeavored to eliminate [the] alleged unlawful employment practice by informal methods' prior to filing suit,” Hazel wrote.

No ‘Good Faith' Inquiry

Dimensions essentially argued that the EEOC didn't try “in earnest” to settle the case, the court said. An affidavit from Dimensions' lawyer described the content of the conciliation process, the court said.

But considering such details is “irrelevant” to judicial review under Mach Mining and it would violate Title VII's confidentiality provisions, the court said.

“Moreover, to the extent Dimensions Healthcare requests that this court pry into whether the EEOC negotiated in good faith, any such argument was explicitly foreclosed by Mach Mining, as multiple courts have recognized since the Supreme Court issued that decision,” Hazel wrote.

EEOC attorneys in Baltimore represented the agency. Miles & Stockbridge PC represented Dimensions Healthcare.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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