Supreme Court may dilute EEOC’s aggressive legal strategy re: concilation

 

Judy Greenwald  Jan. 8, 2015

The U.S. Supreme Court appears highly likely to take some degree of judicial review of whether the Equal Employment Opportunity Commission must seek conciliation with employers before suing them for violating federal law.

The high court heard oral arguments last week in a case in which a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled unanimously in 2013 that employers cannot use the EEOC’s failure to seek conciliation as a defense.

The EEOC had alleged in EEOC v. Mach Mining L.L.C. that the company discriminated against women in its hiring practices.

“My impression is that the court is very concerned with what appears to be the EEOC’s position” that it is not subject to judicial review on the conciliation issue, said David Barmak, a member of law firm Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Washington, who is not involved in the case.

Raanon Gal, an attorney at Taylor English Duma L.L.P. in Atlanta, said a ruling in the employer’s favor “will tip the balance of how these cases are litigated and how the conciliation process will be going forward, if the EEOC has to worry they actually made a good faith effort to settle.”

Mr. Barmak said, however, the ruling’s significance will be as much about the Supreme Court’s willingness “to rein in the EEOC” as it will be about the outcome of this particular case.

Meanwhile, the EEOC recently had two judicial defeats in cases that experts say provide some hope of employers’ success in challenging the agency’s aggressive legal strategy.

In its Jan. 6 ruling in EEOC v. Royal Caribbean Cruises, Ltd., the 11th U.S. Circuit Court of Appeals in Atlanta denied the agency’s appeal for a full court hearing to reconsider a three- judge panel’s ruling. That November ruling, which upheld a magistrate’s decision, chastised the agency for issuing an overly broad and burdensome subpoena in a discrimination case.

The case involved Argentine national Jose Morabito, who alleged in 2010 that Miami-based Royal Caribbean violated the Americans with Disabilities Act by refusing to renew his employment contract after he was diagnosed with HIV and Kaposi’s sarcoma, a cancer frequently associated with AIDS.

In EEOC v. Performance Food Group Inc., the agency accused the Richmond, Virginia-based food marketer and distributor and its predecessor company of an ongoing pattern of refusing to hire women at their distribution facilities.

In a Jan. 5 letter, the magistrate assigned to the case by the U.S. District Court in Baltimore refused the EEOC’s requests for sanctions for the defendant’s alleged “blatant disregard of court-approved and ordered deadlines” to provide its requested data, stating they are “not warranted at this time.”

The rulings in Royal Caribbean and Performance Food give firms the “ammunition to go to court where they really didn’t have a viable opportunity to do that before” in cases where the EEOC “visibly exceeded the boundaries of a reasonable investigation,” said David Gevertz, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. in Atlanta.

“It’s too early to say there’s been a complete turnaround, but it’s just interesting that we start the year with the judges pulling back on the EEOC,” said Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P. in Chicago.

An EEOC spokeswoman said the agency does not comment on ongoing litigation.

 

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