MAKING NOBODY HAPPY

This past April, the U.S. Supreme Court published yet another opinion dealing with the Administrative State.  The number of opinions in that arena each year is testament to the pervasive role of administrative agencies in our nation today.

This latest case involved the EEOC’s duty to conciliate in employment discrimination cases.  When the Commission finds than an employee’s charge of discrimination is supported by probable cause, it may take the case to Court itself.  But before doing so, it has a duty to enter into conciliation talks.

The Supreme Court’s month-old interpretation of this duty made no-one happy.  The EEOC had claimed that courts have no authority to make sure it upheld its conciliation duty.  It argued, in legal speak, that there should be no judicial review of its conciliation efforts at all.  The employer, on the other hand, wanted the Court to scrutinize the Commission’s conciliation efforts in great details.

The Justices found that the statute failed to support either position.  Federal law, it said, allows for judicial review.  But it also gives the EEOC latitude on how to conduct conciliation efforts, so the courts may not examine the process in depth.  Their roles in this regard will be limited to making sure, through proper evidence, that the EEOC engaged in a genuine exchange of views with the employer on the topic of rectifying any unlawful employment practice.

The Employer and the Government probably both felt disappointed by the decision.  But employers now know what to expect or require from the Commission should they face a finding of probable cause.  That is one step further up the administrative road for businesses and their lawyers.