Supreme Court Rules EEOC Conciliation Efforts are Subject to Limited Judicial Review

By Noreen Cull and Alejandra Lara

In Mach Mining, LLC v. EEOC, decided April 29, 2015, the United States Supreme Court unanimously held that federal courts have the authority to review whether the EEOC satisfied its statutory obligation to engage in conciliation before filing suit against an employer.

Rejecting the EEOC’s position that its conciliation efforts are beyond judicial review, the Court stated that absent such review, “the Commission’s compliance with the law would rest in the Commission’s hands alone.” However, the Court held that the “scope of the judicial review is narrow.” The review examines whether the EEOC has properly informed the employer about the specific allegations of discrimination, including what practice has harmed which employees, and whether the EEOC tried “to 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.”


In Mach Mining, a woman filed a charge with the EEOC claiming that the company had refused to hire her as a coal miner because of her sex. The EEOC found reasonable cause to believe that Mach Mining had engaged in unlawful hiring practices. The EEOC sent a letter to the parties inviting them to participate in “informal methods” of dispute resolution and stating that a Commission representative would contact Mach Mining to begin the conciliation process. About a year later, the EEOC sent Mach Mining a second letter stating that “such conciliation efforts as required by law have occurred and have been unsuccessful” and further efforts would be “futile.” There was no record of what, if anything, occurred during the time span between the first and second letter Mach Mining received from the EEOC.

Mach Mining argued in the district court that the EEOC failed to conciliate in good faith before filing a lawsuit. The EEOC sought summary judgment, claiming that its conciliation efforts are not reviewable and that, in any event, the two letters the EEOC sent to Mach Mining were sufficient proof of its efforts. The trial court denied the motion but the Seventh Circuit reversed, holding that the EEOC’s conciliation efforts were not subject to judicial review. 

Supreme Court Decision

In reaching its decision, the Supreme Court first stated that the EEOC’s duty to conciliate is a mandatory prerequisite to the EEOC filing a lawsuit. Further, the Court reasoned that there is a “strong presumption favoring judicial review of administrative action” and that nothing in Title VII overcomes that strong presumption. The Court analyzed the scope of the judicial review and rejected both the EEOC’s minimalist “facial examination of certain EEOC documents” and Mach Mining’s proposal for an in depth review. The Court instead settled on a limited judicial review of the EEOC’s conciliation efforts.

The Court stated that a sworn affidavit from the EEOC attesting that it has performed the conciliation obligations required by Title VII but its efforts failed “will usually suffice to show that it has met the conciliation requirement.” But if an employer provides credible evidence—either in the form of an affidavit or otherwise—that the EEOC “did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.” If the court finds for the employer, the remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance. 


For employers, the implication of the Mach Mining decision is somewhat mixed. The decision makes clear to employers and to the EEOC that federal courts do have the authority to review whether the EEOC has met its pre-suit conciliation obligations and provides certain guidance regarding the adequacy of EEOC’s efforts. However, the scope of that judicial review is a “relatively barebones review.” Going forward, employers should document any conciliation efforts so that, if necessary and as outlined by the Court, the employer can demonstrate that the EEOC did not provide the requisite information about the charge or failed to engage in a discussion about conciliating the claim.

EEOC Takes on Transgender Discrimination under Title VII

By DeMaris E. Trapp

On April 21, 2014, the U.S. District Court for the Eastern District of Michigan ruled that the EEOC may proceed with sex discrimination claims on behalf of a transgender plaintiff. This litigation is one of two actions filed by the EEOC in September 2014 alleging that employers violated Title VII by discriminating against transgender employees on the basis of sex.

While the EEOC acknowledges that transgender status is not explicitly protected under Title VII provisions, the Commission has taken the position since 2012 that discrimination against an individual because that person is transgender nevertheless constitutes sex discrimination under the theory of sex-stereotyping, i.e., taking an adverse action against an employee on the basis of that person’s nonconformance to sex- or gender-based preferences.

Federal Courts Permit Transgender Plaintiffs’ Claims under Sex Stereotyping Theory 

The Commission’s two federal complaints, EEOC v. Lakeland Eye Clinic, P.A. (No. 8:14-cv-2421) in the Middle District of Florida and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (No. 2:14-cv-13710) in the Eastern District of Michigan, both involve transgender women who allege they were fired soon after notifying their employers that they would begin transitioning from presenting as a man to presenting as a woman. The parties settled the Florida case, but the Michigan litigation is continuing after the court’s denial of the employer’s motion to dismiss. While reiterating that “transgender” is not a protected status under Title VII, the court noted a Sixth Circuit decision holding that an employer’s treatment of a transgender employee in consideration of the employer’s sex- or gender-based preferences, expectations, or stereotypes, i.e., sex stereotyping, is actionable under Title VII. District courts in the Third, Fifth, and D.C. circuits have also held that sex stereotyping is a viable theory for transgender employees and allowed those employees’ Title VII claims to survive dismissal. 

Employer Takeaways 

Given the EEOC’s increased focus on transgender workers’ rights, employers should revisit their policies, such as dress code and grooming policies, to consider how they may affect transgender employees. In addition to prohibiting discriminatory treatment of transgender employees with respect to hiring, firing, and compensation decisions, employers should also develop, or improve upon, their protocol for handling an employee’s gender transition. A recent EEOC administrative decision (in which it found that the Army discriminated against a transgender employee) provides guidance on the type of employer actions that are likely to constitute unlawful discrimination against a transitioning employee: 

• An employer should not limit a transgender employee’s access to a single stall restroom, even if equal in quality to the common restrooms.

• An employer should not condition recognition of a transgender employee’s gender identity (i.e., the name or pronoun used when addressing the employee) on that individual’s completion of certain surgical procedures that render the individual physically male or female.

• An employer may be held liable for harassment if supervisors or coworkers refuse to address the transgender employee by his or her transgender name and/or by pronouns that are associated with that individual’s desired gender identification.

New Guidance Regarding Employee Handbooks – Part Four: Permissible Rules Restricting Photography and Recording: A Snapshot

By Valerie Kahn

This post is the fourth in a series providing guidance on federal rules regarding permissible and impermissible employer handbook policies and rules. See Guidance Regarding Confidentiality Rules, found here and regarding Employee Conduct Rules, found here and regarding Rules Related to Company Logos, Copyright, and Trademark.   While the recent guidance was issued by the National Labor Relations Board (NLRB) (view the full Memorandum here), this guidance is applicable to both unionized and non-unionized employers. The National Labor Relations Act (NLRA) restricts all employers from issuing policies or rules – even if well-intentioned – that inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.

When Do Restrictions on Photography and Recording Go Too Far?

When it comes to rules restricting an employee’s ability to take photographs or make recordings, the NLRB recognizes that employers have legitimate interests, such as maintaining the confidentiality of business records and protecting the privacy of employees and customers. However, those interests must be balanced against employees’ rights under Section 7 of the NLRA to take photographs or make recordings in furtherance of protected concerted activity, such as documenting unfair labor practices or health and safety violations. Accordingly, the key when drafting or reviewing such policies is to ensure they are sufficiently limited in scope and could not reasonably be read to prohibit taking pictures or making recordings on non-work time.

While context always matters, a few key guidelines emerge from the NLRB report:

•  DO NOT impose a broad ban on use of recording devices on employer property.

•   DO NOT impose a broad ban on use or possession of personal electronic devices, such as cell phones, computers, or data storage devices.

•  DO NOT prohibit employees from using personal electronic equipment “while on duty,” as this could be interpreted to restrict such use during rest and meal breaks occurring during an employee’s shift.

Finding a Policy That Protects Employers’ Interests and Section 7 Rights

The NLRB has provided one example of a policy that strikes the right balance:

•  “Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment/discrimination policy), [and] protection of proprietary [information, employees] may not take, distribute, or post pictures, videos, or audio recordings while on working time. [Employees] also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activities protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.”

This policy was found to be narrowly tailored enough to protect employees’ Section 7 rights while still addressing the legitimate interests of the employer.

As always, it is important to remember that context matters when evaluating employer policies, handbooks, and rules. For instance, the NLRB has found that a no-photography rule instituted in response to a breach of patient privacy at an employer with a well-understood and strong privacy interest did not infringe on employees’ Section 7 rights because it would not be reasonably understood to limit taking pictures for protected concerted purposes. See Flagstaff Medical Center, 357 NLRB No. 65, slip op. at 5 (Aug. 26, 2011), enforced in relevant part, 715 F.3d 928 (D.C. Cir. 2013). Therefore, be sure to consider the particular circumstances of the employer and how employees could reasonably interpret policies restricting photography and recording when reviewing policies of this nature.