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SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1019
_________________
MACH MINING, LLC, PETITIONER
v. EQUAL EM-PLOYMENT
OPPORTUNITY COMMISSION
on writ of certiorari to the united states court of appeals for
the seventh circuit
[April 29, 2015]
Justice Kagan delivered the opinion of the Court.
Before suing an employer for discrimination, the Equal
Employment Opportunity Commission (EEOC or Commission) must try to
remedy unlawful workplace practices through informal methods of
conciliation. This case requires us to decide whether and how
courts may review those efforts. We hold that a court may review
whether the EEOC satisfied its statutory obligation to attempt
conciliation before filing suit. But we find that the scope of that
review is narrow, thus recognizing the EEOC’s extensive discretion
to determine the kind and amount of communication with an employer
appropriate in any given case.
I
Title VII of the Civil Rights Act of 1964,78Stat.241,42
U. S. C. §2000e
et seq., sets out a detailed,
multi-step procedure through which the Commission enforces the
statute’s prohibition on employment discrimination. The process
generally starts when “a person claiming to be aggrieved” files a
charge of an unlawful workplace practice with the EEOC.
§2000e–5(b). At that point, the EEOC notifies the employer of the
complaint and undertakes an investigation. See
ibid. If the
Commission finds no “reasonable cause” to think that the allegation
has merit, it dismisses the charge and notifies the parties.
Ibid. The complainant may then pursue her own lawsuit if she
chooses. See §2000e–5(f )(1).
If, on the other hand, the Commission finds reasonable cause, it
must first “endeavor to eliminate [the] alleged unlawful employment
practice by informal methods of conference, conciliation, and
persuasion.” §2000e–5(b). To ensure candor in those discussions,
the statute limits the disclosure and use of the participants’
statements: “Nothing said or done during and as a part of such
informal endeavors” may be publicized by the Commission or “used as
evidence in a subsequent proceeding without the written consent of
the persons concerned.”
Ibid. The statute leaves to the EEOC
the ultimate decision whether to accept a settlement or instead to
bring a lawsuit. So long as “the Commission has been unable to
secure from the respondent a conciliation agreement acceptable to
the Commission” itself, the EEOC may sue the employer.
§2000e–5(f )(1).
This case began when a woman filed a charge with the EEOC
claiming that petitioner Mach Mining, LLC, had refused to hire her
as a coal miner because of her sex. The Commission investigated the
allegation and found reasonable cause to believe that Mach Mining
had discriminated against the complainant, along with a class of
women who had similarly applied for mining jobs. See App. 15. In a
letter announcing that determination, the EEOC invited both the
company and the complainant to participate in “informal methods” of
dispute resolution, promising that a Commission representative
would soon “contact [them] to begin the conciliation process.”
Id., at 16. The record does not disclose what happened next.
But about a year later, the Commission sent Mach Mining a second
letter, stating that “such conciliation efforts as are required by
law have occurred and have been unsuccessful” and that any further
efforts would be “futile.”
Id., at 18–19.
The EEOC then sued Mach Mining in federal district court
alleging sex discrimination in hiring. The Commission’s complaint
maintained that “[a]ll conditions precedent to the institution of
this lawsuit”—including an attempt to end the challenged practice
through conciliation—“ha[d] been fulfilled.”
Id., at 22. In
its answer, Mach Mining contested that statement, asserting that
the EEOC had failed to “conciliat[e] in good faith” prior to filing
suit.
Id., at 30.
The Commission subsequently moved for summary judgment on that
issue, contending that its “conciliation efforts are not subject to
judicial review.” Motion for Summary Judgment in No. 3:11–cv–00879
(SD Ill.), p. 1. At most, the Commission argued, the court could
inspect the EEOC’s two letters to Mach Mining to confirm that the
EEOC had met its duty to attempt conciliation. See
id., at
11, 19. Mach Mining responded by urging the court to consider the
overall “reasonable[ness]” of the EEOC’s efforts, based on evidence
the company would present about the conciliation process.
Memorandum in Opposition to Motion for Partial Summary Judgment in
No. 3:11–cv–00879 (SD Ill.), p. 20. The trial court agreed with
Mach Mining that it should review whether the Commission had made
“a sincere and reasonable effort to negotiate.” Civ. No. 11–879 (SD
Ill., Jan. 28, 2013), App. to Pet. for Cert. 40a, 2013 WL 319337,
*5 (internal quotation marks omitted). At the EEOC’s request, the
court then authorized an immediate appeal of its ruling. See Civ.
No. 11–879 (SD Ill., May 20, 2013), App. to Pet. for Cert. 52a–55a,
2013 WL 2177770, *5–*6;28 U. S. C. §1292(b).
The Court of Appeals for the Seventh Circuit reversed, holding
that “the statutory directive to attempt conciliation” is “not
subject to judicial review.” 738 F. 3d 171, 177 (2013). According
to the court, that provision entrusts conciliation “solely to the
EEOC’s expert judgment” and thus provides no “workable standard” of
review for courts to apply.
Id., at 174, 177. The Seventh
Circuit further reasoned that judicial review of the conciliation
process would “undermine enforcement of Title VII” by
“protract[ing] and complicat[ing]” discrimination suits.
Id., at 178–179 (quoting
Doe v.
Oberweis
Diary, 456 F. 3d 704, 710 (CA7 2006)). In its concluding
paragraph, however, the court indicated that it had in fact
subjected the EEOC’s activities to a smidgen of review: Because the
Commission “pled on the face of its complaint that it ha[d]
complied with all” prerequisites to suit and because its two
letters to Mach Mining were “facially sufficient” to show that
conciliation had occurred, the court stated, “our review of [that
process] is satisfied.” 738 F. 3d, at 184.
Other Courts of Appeals have held that Title VII allows judicial
review of the EEOC’s conciliation efforts, but without agreeing on
what that review entails.[
1] We granted
certiorari, 573 U. S. ___ (2014), to address whether andto
what extent such an attempt to conciliate is subject to judicial
consideration.
II
Congress rarely intends to prevent courts from enforcing its
directives to federal agencies. For that reason, this Court applies
a “strong presumption” favoring judicial review of administrative
action.
Bowen v.
Michigan Academy of Family
Physicians,476 U. S. 667,670 (1986). That presumption is
rebuttable: It fails when a statute’s lan-guage or structure
demonstrates that Congress wanted an agency to police its own
conduct. See
Block v.
Community Nutrition
Institute,467 U. S. 340,349,351 (1984). But the agency
bears a “heavy burden” in attempting to show that Congress
“prohibit[ed] all judicial review” of the agency’s compliance with
a legislative mandate.
Dunlop v.
Bachowski,421
U. S. 560,567 (1975).
Title VII, as the Government acknowledges, imposes a duty on the
EEOC to attempt conciliation of a discrimination charge prior to
filing a lawsuit. See Brief for Respondent 20. That obligation is a
key component of the statutory scheme. In pursuing the goal of
“bring[ing] employment discrimination to an end,” Congress chose
“[c]ooperation and voluntary compliance” as its “preferred means.”
Ford Motor Co. v.
EEOC,458 U. S. 219,228 (1982)
(quoting
Alexander v.
Gardner-Denver Co.,415
U. S. 36,44 (1974)). Accordingly, the statute provides, as
earlier noted, that the Commission “shall endeavor to eliminate
[an] alleged unlawful employment practice by informal methods of
conference, conciliation, and persuasion.” §2000e–5(b); see
supra, at 2. That language is mandatory, not precatory. Cf.
National Railroad Passenger Corporation v.
Morgan,536
U. S. 101,109 (2002) (noting that the word “shall” admits of
no discretion). And the duty it imposes serves as a necessary
precondition to filing a lawsuit. Only if the Commission is “unable
to secure” an acceptable conciliation agreement—that is, only if
its attempt to conciliate has failed—may a claim against the
employer go forward. §2000e–5(f )(1).
Courts routinely enforce such compulsory prerequisites to suit
in Title VII litigation (and in many other contexts besides). An
employee, for example, may bring a Title VII claim only if she has
first filed a timely charge with the EEOC—and a court will usually
dismiss a complaint for failure to do so. See,
e.g., id., at
104–105, 114–115. Similarly, an employee must obtain a right-to-sue
letter before bringing suit—and a court will typically insist on
satisfaction of that condition. See,
e.g., McDonnell Douglas
Corp. v.
Green,411 U. S. 792,798 (1973); see also,
e.g., Hallstrom v.
Tillamook County,493
U. S. 20,26 (1989) (upholding dismissal of an environmental
suit for failure to comply with a notice provision serving as a
“condition precedent”);
United States v.
Zucca,351
U. S. 91 (1956) (affirming dismissal of a denaturalization
suit because of the Government’s failure to comply with a mandatory
prerequisite). That ordinary part of Title VII litigation—see a
prerequisite to suit, enforce a prerequisite to suit—supports
judicial review of the EEOC’s compliance with the law’s
conciliation provision.
The Government, reiterating the Seventh Circuit’s view, contests
that conclusion, arguing that Title VII provides “no standards by
which to judge” the EEOC’s performance of its statutory duty. Brief
for Respondent 17. The Government highlights the broad leeway the
statute gives the EEOC to decide how to engage in, and when to give
up on, conciliation. In granting that discretion, the Government
contends, Congress deprived courts of any “judicially manageable”
criteria with which to review the EEOC’s efforts.
Id., at 36
(quoting
Heckler v.
Chaney,470 U. S. 821,830
(1985)). And in that way Congress “demonstrate[d] [its] intention
to preclude judicial review
.” Brief for Respondent 39.
But in thus denying that Title VII creates a “reviewable
prerequisite to suit,” the Government takes its observation about
discretion too far.
Id., at 37 (quoting 738 F. 3d, at 175).
Yes, the statute provides the EEOC with wide latitude over the
conciliation process, and that feature becomes significant when we
turn to defining the proper scope of judicial review. See
infra, at 10–11. But no, Congress has not left
everything to the Commission. Consider if the EEOC declined
to make any attempt to conciliate a claim—if, after finding
reasonable cause to support a charge, the EEOC took the employer
straight to court. In such a case, Title VII would offer a
perfectly serviceable standard for judicial review: Without any
“endeavor” at all, the EEOC would have failed to satisfy a
necessary condition of litigation.
Still more, the statute provides certain concrete standards
pertaining to what that endeavor must entail. Again, think of how
the statute describes the obligatory attempt: “to eliminate [the]
alleged unlawful employment practice by informal methods of
conference, conciliation, and persuasion.” §2000e–5(b). Those
specified methods necessarily involve communication between
parties, including the exchange of information and views. As one
dictionary variously defines the terms, they involve “consultation
or discussion,” an attempt to “reconcile” different positions, and
a “means of argument, reasoning, or entreaty.” American Heritage
Dictionary 385, 382, 1318 (5th ed. 2011). That communication,
moreover, concerns a particular thing: the “alleged unlawful
employment practice.” So the EEOC, to meet the statutory condition,
must tell the employer about the claim—essentially, what practice
has harmed which person or class—and must provide the employer with
an opportunity to discuss the matter in an effort to achieve
voluntary compliance. See also
infra, at 13. If the
Commission does not take those specified actions, it has not
satisfied Title VII’s requirement to attempt conciliation. And in
insisting that the Commission do so, as the statutory language
directs, a court applies a manageable standard.
Absent such review, the Commission’s compliance with the law
would rest in the Commission’s hands alone. We need not doubt the
EEOC’s trustworthiness, or its fidelity to law, to shy away from
that result. We need only know—and know that Congress knows—that
legal lapses and violations occur, and especially so when they have
no consequence. That is why this Court has so long applied a strong
presumption favoring judicial review of administrative action. See
supra, at 4–5. Nothing overcomes that presumption with
respect to the EEOC’s duty to attempt conciliation of employment
discrimination claims.
III
That conclusion raises a second dispute between the parties:
What is the proper scope of judicial review of the EEOC’s
conciliation activities? The Government (once having accepted the
necessity for some review) proposes that courts rely solely on
facial examination of certain EEOC documents. Mach Mining argues
for far more intrusive review, in part analogizing to the way
judges superintend bargaining between employers and unions. We
accept neither suggestion, because we think neither consistent with
the choices Congress made in enacting Title VII. The appropriate
scope of review enforces the statute’s requirements as just
described—in brief, that the EEOC afford the employer a chance to
discuss and rectify a specified discriminatory practice—but goes no
further. See
supra, at 7;
infra, at 13. Such limited
review respects the expansive discretion that Title VII gives to
the EEOC over the conciliation process, while still ensuring that
the Commission follows the law.
The Government argues for the most minimalist form of review
imaginable. Echoing the final paragraph of the decision below, the
Government observes that the EEOC, in line with its standard
practice, wrote two letters to Mach Mining. See
supra, at
2–3, 4. The first, after announcing the Commission’s finding of
reasonable cause, informed the company that “[a] representative of
this office will be in contact with each party in the near future
to begin the conciliation process.” App. 16. The second, sent about
a year later, stated that the legally mandated conciliation attempt
had “occurred” and failed.
Id., at 18. According to the
Government, those “bookend” letters are all a court ever needs for
review, because they “establish” that the EEOC met its obligation
to attempt conciliation. Brief for Respondent 21.
But review of that kind falls short of what Title VII demands
because the EEOC’s bookend letters fail to prove what the
Government claims. Contrary to its intimation, those letters do not
themselves fulfill the conciliation condition: The first declares
only that the process will start soon, and the second only that it
has concluded. The two letters, to be sure, may provide indirect
evidence that conciliation efforts happened in the interim; the
later one expressly represents as much. But suppose an employer
contests that statement. Let us say the employer files an affidavit
alleging that although the EEOC promised to make contact, it in
fact did not. In that circumstance, to treat the letters as
sufficient—to take them at face value, as the Government wants—is
simply to accept the EEOC’s say-so that it complied with the law.
And as earlier explained, the point of judicial review is instead
to
verify the EEOC’s say-so—that is, to determine that the
EEOC actually, and not just purportedly, tried to conciliate a
discrimination charge. See
supra, at 7–8. For that, a court
needs more than the two bookend letters the Government
proffers.
Mach Mining, for its part, would have a court do a deep dive
into the conciliation process. Citing the standard set out in the
National Labor Relations Act (NLRA), Mach Mining wants a court to
consider whether the EEOC has “negotiate[d] in good faith” over a
discrimination claim. Brief for Petitioner 37; see29
U. S. C. §158(d) (imposing a duty on employers and unions
to bargain “in good faith with respect to . . . terms and
conditions of employment”). That good-faith obligation, Mach Mining
maintains, here incorporates a number of specific requirements. In
every case, the EEOC must let the employer know the “minimum
. . . it would take to resolve” the claim—that is, the
smallest remedial award the EEOC would accept. Tr. of Oral Arg. 63.
The Commission must also lay out “the factual and legal basis for”
all its positions, including the calculations underlying any
monetary request. Brief for Petitioner 39. And the Commission must
refrain from making “take-it-or-leave-it” offers; rather, the EEOC
has to go back and forth with the employer, considering and
addressing its various counter-offers and giving it sufficient time
at each turn “to review and respond.”
Id., at 40. The
function of judicial review, Mach Mining concludes, is to compel
the Commission to abide by these rules.
To begin, however, we reject any analogy between the NLRA and
Title VII. The NLRA is about process and process alone. It creates
a sphere of bargaining—in which both sides have a mutual obligation
to deal fairly—without expressing any preference as to the
substantive agreements the parties should reach. See §§151, 158(d).
By contrast, Title VII ultimately cares about substantive results,
while eschewing any reciprocal duties of good-faith negotiation.
Its conciliation provision explicitly serves a substantive mission:
to “eliminate” unlawful discrimination from the workplace.42
U. S. C. §2000e–5(b). In discussing a claim with an
employer, the EEOC must always insist upon legal compliance; and
the employer, for its part, has no duty at all to confer or
exchange proposals, but only to refrain from any discrimination.
Those differences make judicial review of the NLRA’s duty of
good-faith bargaining a poor model for review of Title VII’s
conciliation requirement. In addressing labor disputes, courts have
devised a detailed body of rules to police good-faith dealing
divorced from outcomes—and so to protect the NLRA’s core procedural
apparatus. But those kinds of rules do not properly apply to a law
that treats the conciliation process not as an end in itself, but
only as a tool to redress workplace discrimination.
More concretely, Mach Mining’s proposed code of con-duct
conflicts with the latitude Title VII gives the Commission to
pursue voluntary compliance with the law’s commands. Every aspect
of Title VII’s conciliation provision smacks of flexibility. To
begin with, the EEOC need only “endeavor” to conciliate a claim,
without having to devote a set amount of time or resources to that
project. §2000e–5(b). Further, the attempt need not involve any
specific steps or measures; rather, the Commission may use in each
case whatever “informal” means of “conference, conciliation, and
persuasion” it deems appropriate.
Ibid. And the EEOC alone
decides whether in the end to make an agreement or resort to
litigation: The Commission may sue whenever “unable to secure”
terms “accept-able
to the Commission.” §2000e–5(f )(1)
(emphasis added). All that leeway respecting how to seek voluntary
compliance and when to quit the effort is at odds with Mach
Mining’s bargaining checklist. Congress left to the EEOC such
strategic decisions as whether to make a bare-minimum offer, to lay
all its cards on the table, or to respond to each of an employer’s
counter-offers, however far afield. So too Congress granted the
EEOC discretion over the pace and duration of conciliation efforts,
the plasticity or firmness of its negotiating positions, and the
content of its demands for relief. For a court to assess any of
those choices—as Mach Mining urges and many courts have done, see
n. 1,
supra—is not to enforce the law Congress wrote,
but to impose extra procedural requirements. Such judicial review
extends too far.
Mach Mining’s brand of review would also flout Title VII’s
protection of the confidentiality of conciliation efforts. The
statute, recall, provides that “[n]othing said or done during and
as a part of such informal endeavors may be made public by the
Commission . . . or used as evidence in a subsequent
proceeding without the written consent of the persons
concerned”—both the employer and the complainant. §2000e–5(b); see
EEOC v.
Associated Dry Goods Corp.,449 U. S.
590, and n. 13 (1981). But the judicial inquiry Mach Mining
proposes would
necessitate the disclosure and use of such
information in a later Title VII suit: How else could a court
address an allegation that the EEOC failed to comply with all the
negotiating rules Mach Mining espouses?[
2] The
proof is in this very case: The District Court held that it could
not strike from the record descriptions of the conciliation process
because they spoke to whether the EEOC had made a “sincere and
reasonable effort to negotiate.” App. to Pet. for Cert. 40a
(internal quotation marks omitted); see
supra, at 3. The
court thus failed to give effect to the law’s non-disclosure
provision. And in so doing, the court undermined the conciliation
process itself, because confidentiality promotes candor in
discussions and thereby enhances the prospects for agreement. As
this Court has explained, “[t]he maximum results from the voluntary
approach will be achieved if ” the parties know that
statements they make cannot come back to haunt them in litigation.
Associated Dry Goods Corp., 449 U. S., at 599, n. 16
(quoting 110 Cong. Rec. 8193 (1964) (remarks of Sen. Dirksen)). And
conversely, the minimum results will be achieved if a party can
hope to use accounts of those discussions to derail or delay a
meritorious claim.
By contrast with these flawed proposals, the proper scope of
judicial review matches the terms of Title VII’s conciliation
provision, as we earlier described them. See
supra, at 7.
The statute demands, once again, that the EEOC communicate in some
way (through “conference, conciliation, and persuasion”) about an
“alleged unlawful employment practice” in an “endeavor” to achieve
an employer’s voluntary compliance. §2000e–5(b). That means the
EEOC must inform the employer about the specific allegation, as the
Commission typically does in a letter announcing its determination
of “reasonable cause.”
Ibid. Such notice properly describes
both what the employer has done and which employees (or what class
of employees) have suffered as a result. And the EEOC must try 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. Judicial review of those
requirements (and nothing else) ensures that the Commission
complies with the statute. At the same time, that relatively
barebones review allows the EEOC to exercise all the expansive
discretion Title VII gives it to decide how to conduct conciliation
efforts and when to end them. And such review can occur consistent
with the statute’s non-disclosure provision, because a court looks
only to whether the EEOC attempted to confer about a charge, and
not to what happened (
i.e., statements made or positions
taken) during those discussions.
A sworn affidavit from the EEOC stating that it has performed
the obligations noted above but that its efforts have failed will
usually suffice to show that it has met the conciliation
requirement. Cf.
United States v.
Clarke, 573
U. S. ___, ___ (2014) (slip op., at 6) (“[A]bsent contrary
evidence, the [agency] can satisfy [the relevant] standard by
submitting a simple affidavit from” the agency representative
involved). If, however, the employer provides credible evidence of
its own, in the form of an affidavit or otherwise, indicating 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. Cf.
id., at ___–___ (slip op., at 6–7).
Should the court find in favor of the employer, the appropriate
remedy is to order the EEOC to undertake the mandated efforts to
obtain voluntary compliance. See §2000e–5(f )(1) (authorizing
a stay of a Title VII action for that purpose).
IV
Judicial review of administrative action is the norm in our
legal system, and nothing in Title VII withdraws the courts’
authority to determine whether the EEOC has fulfilled its duty to
attempt conciliation of claims. But the scope of that review is
narrow, reflecting the abundant discretion the law gives the EEOC
to decide the kind and extent of discussions appropriate in a given
case. In addressing a claim like Mach Mining’s, courts may not
impinge on that latitude and on the Commission’s concomitant
responsibility to eliminate unlawful workplace discrimination.
For the reasons stated, we vacate the judgment of the Court of
Appeals and remand the case for further proceedings consistent with
this opinion.
It is so ordered.
