(UN?)INTENDED CONSEQUENCES

Once the U.S. Supreme Court makes a ruling, its decision becomes the law of the land.  It binds all other courts, both state and federal, everywhere in the country.  And as litigants, their lawyers, and the judges take notice, those decisions sometimes take on new dimensions.

A few months ago, the Supremes  decided how closely the Courts should scrutinize the EEOC’s efforts to mediate – something we reported on this blog.  To summarize, when the EEOC, having investigated a complaint, finds probable cause to think that non-discrimination laws were broken, it must mediate before suing the business on the employees’ behalf.  The Supreme Court decided that courts could make sure mediation happened, but could not go into too much detail.  Their lot is not to micro-manage the EEOC.

A Federal Court recently faced a similar question at another step in the EEOC’s function: the initial investigation.  When the EEOC receives a complaint (called a “charge”) it must investigate it to determine whether it thinks non-discrimination laws were violated.  Such a finding triggers both its duty to mediate and its authority to take the employer to court.

A business protested that the EEOC’s investigation in its case, which lead to a finding of probable cause, was somewhere between cursory and non-existent.  It asked the Court to intervene and was convincing enough for a federal judge to throw out the lawsuit.  The EEOC is now asking an appellate panel to apply to investigations the same standard the Supreme Court applied to mediation.  It is inviting the panel to reinstate the complaint on the grounds that the court below should not have scrutinized the investigation, but only satisfied itself that it happened.

That the subject should be undecided is not surprising.  Supreme Court decisions have a way of raising as many questions as they answer.  Careful attorneys will anticipate the former as assiduously as they take stock of the latter.