EEOC's Duty To Investigate: Limited Judicial Oversight, Says Appeals Court

Let’s face it – law and politics are inextricably intertwined.

Under the last administration, the EEOC was relatively quiescent and employers spent little time addressing or attacking it or its role in discrimination cases.  (Note that before a charging party can sue in federal court she has to file a charge with the EEOC and go through the EEOC process).   In the past the EEOC was, in fact, seen by some on both sides as merely a gatekeeper — with delay its biggest attribute or fault.

The pendulum swings in law as in politics.

Under the current administration, with the EEOC flexing its muscles much more, and bringing more systemic cases of discrimination, employers have sued seeking to throw thumbtacks along the road to the court  — attacking the EEOC’s practices and procedures.   Ironically, or so it might seem to the uninitiated, defendants’ lawyers began to attack the EEOC not for doing it’s job, but for allegedly not doing it’s job — not conciliating, not investigating, etc., all of which it is statutorily required to do under Title VII.   Indeed, the scope of court review of these statutory obligations of the EEOC became an issue of late.

The federal Court of Appeals in NYC has just issued a significant decision on the role and duty of the EEOC in dealing with charges of discrimination.   This comes on the heels of the recent Mach Mining case, where the US Supreme Court ruled that with regard to conciliation by the EEOC, judicial review is “narrow,” serving to “enforce[] the statute’s requirements … that the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice — but goes no further.”   The Supreme Court said that a simple sworn EEOC affidavit which claims that it satisfied its conciliation obligations “will usually suffice to show that it has met the conciliation requirement.”

In this new case, the EEOC sued alleging that Sterling Jewelry engaged in a nationwide practice of sex‐based pay and promotion discrimination.  The lower court dismissed the action, holding that the EEOC had failed to prove that it conducted a satisfactory investigation.  On appeal, the EEOC contended that the lower court improperly reviewed the sufficiency of the EEOC investigation, rather than whether there was an investigation.

Sherlock Holmes, Detective

The Court of Appeals ruled that under Mach Mining sufficiency of the conciliation process was basically not open for judicial review, and extended this reasoning to investigations:   “Under Title VII, courts may review whether the EEOC conducted an investigation, but not the sufficiency of an investigation.  The EEOC conducted an investigation in this case.”

That was enough for the Court.


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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]