Supreme Court: The EEOC Can't Just Sue You Without Trying to Work it Out First

Posted by Edward Sharkey on Mon, 07/20/2015 - 04:00

In a unanimous decision, the Supreme Court affirmed that the EEOC must try to work out disputes before it simply sues an employer. By statute, the EEOC must “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” The Court affirmed that the EEOC has “extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” But such broad latitude does not overcome the “strong presumption” that a court can review and reject the EEOC's efforts if they are not sufficient.

Nonetheless, the Court’s ruling provides for a “relatively barebones” judicial review. The standard merely requires the EEOC to inform the employer about the nature of the claim and “engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.” The Court rejected the employer's argument that the EEOC should be held to a higher “good faith” standard.

The decision has been characterized as a “setback for the Obama administration,” and a “significant win” for employers. Without a good faith standard, however, the obligation to negotiate is pretty meaningless. To challenge a hair-trigger lawsuit by the EEOC, employers must show, by “credible evidence” that "the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim.”

The take away for employers? The EEOC does not have to do too much talking with you before it can sue you. So do not be too quick to terminate negotiations if you believe you have a problem.

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