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LA VOTES TO BAN THE BOX AND THEN SOME – UPDATE

On January 22, 2017, Los Angeles is set become the latest city to “ban the box,” restricting private employers with at least ten employees from asking applicants to disclose their criminal histories prior to an offer of employment.

The Fair Chance Initiative for Hiring Ordinance (FCIHO), adopted last month by LA City Council, will be one of the most restrictive for private employers, going beyond measures set in other parts of the country, including New York and San Francisco.

According to FCIHO guidelines, employers conducting business in Los Angeles may no longer include questions on job applications asking for information regarding an applicant’s criminal history. Employers will also be required to state in all job postings, solicitations, and advertisements that they will consider applicants with criminal histories in a manner consistent with the new ordinance.

In addition, employers who wish to rescind an employment offer after learning of an applicant’s criminal history must first perform a written assessment linking the applicant’s criminal history with “risks inherent in the duties of the employment position.”  The assessment must also consider such factors as the gravity of the offense and the time elapsed.

Before officially withdrawing an offer, an employer must follow the “Fair Chance Process,” which includes providing the applicant with written notification of the adverse employment action, a copy of the written assessment described above, and any other information or documentation supporting the proposed adverse action.   The employer must then allow at least five business days for the applicant to respond with additional information. If the applicant provides mitigating information, the employer must perform a reassessment and provide the applicant with a written copy.

 

Other items from the ordinance LA employers need to consider:

 

  1. A notice must be posted in a conspicuous place informing all applicants that the employer follows all provisions of the Fair Chance Initiative;
  2. Employers may not retaliate against anyone who complains about noncompliance or who tries to enforce rights granted under the ordinance;
  3. Employers must retain all job applications, written assessments and reassessments for a period of three years;
  4. The law is effective immediately, but until July 1, 2017, the only penalty for noncompliance will be a written warning. Starting July 1, 2017, employers that violate the ordinance may be subject to fines and penalties.

 

Employers exempt from the FCIHO include those prohibited by law from hiring individuals with criminal convictions or who are required to possess or use a firearm.

 

For a more in-depth article from Biz Journal, click here.
To read the Fair Chance Initiative in full, click here.

LA Votes to Ban the Box

On November 30, the Los Angeles City Council voted 12-1 to approve an ordinance which prohibits LA employers from inquiring about an applicant’s criminal record until a conditional job offer has been made.

This ordinance adheres to the nationwide “Ban the Box” movement which calls for the removal of check boxes or questions on job forms that ask a person to disclose their criminal history.  The goal of this movement is aimed at giving formerly incarcerated people a better chance at obtaining employment.  So far, more than 100 jurisdictions in 23 states have passed laws that prevent employers from asking about an applicant’s criminal history during the first stages of the hiring process.

Because the initial vote was not unanimous the city council will vote again this month, but the law is still expected to pass since subsequent votes only require a majority. If given final approval, LA employers (except in fields such as child care and law enforcement) with 10 or more employees and city contractors will be prohibited from asking about criminal records on their job applications. Any employer who then decides against hiring someone after learning of their criminal history would need to provide justification for why the offer is being rescinded.

The policy is expected to go into effect January 1, 2017.

For an article from ABC go to: http://abc7.com/business/la-city-council-approves-ban-on-criminal-records-disclosure-for-job-applicants/1634700/

The Pros And Cons Of Fingerprinting Uber Drivers

“Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers.

Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation).

To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require an individual’s fingerprint (usually captured by means of “livescan” technology) to access either a state criminal history repository or the FBI database, which collects data from the state and local systems. In contrast to name-based checks conducted by commercial background check companies, fingerprint-based checks are less vulnerable to misidentification. In addition, private employers typically cannot access the databases requiring fingerprinting of the workers unless authorized by a federal, state, or local occupational licensing law, like the ride-hailing laws regulating taxi drivers. Instead, with varying degrees of accuracy, the commercial background check companies collect criminal history data from the local courts, the states, and “aggregators” of criminal history data.”

Originally posted by The Huffington Post. Full Article at http://www.huffingtonpost.com/maurice-emsellem/fingerprinting-uber-drivers_b_10972428.html

“LA City Hall panel backs fining companies for asking applicants about past crimes”

“Businesses that ask a job applicant about his or her criminal history during the hiring process could be fined and forced to pay the applicant up to $500 under a new law being considered by city leaders.

A Los Angeles City Council committee backed a plan Tuesday to penalize businesses that weed out applicants based on criminal convictions.

The rules are part of a law under consideration by the council aimed at giving former convicts a better shot at obtaining employment.

The Ban the Box ordinance, approved in concept last year by the council, bans private employers with 10 or more workers from asking questions related to an applicant’s criminal history before a conditional offer of employment has been made.

Employers also have to strip criminal history questions from job applications under the proposed law. The “box” refers to “check box” indicating a conviction on an application.

Exemptions for employers in the child care or law enforcement industry are allowed under the ordinance.

Los Angeles non-profits, churches, and other groups support the law, contending it will cut jail recidivism rates by helping former convicts land jobs.

Both the state and federal governments have similar rules in place for applicants seeking public sector jobs, while San Francisco has laws that also apply to private companies.

Some Los Angeles business groups, including the Valley Industry and Commerce Association, oppose the proposed Los Angeles law.”

 

Originally posted by Dakota Smith of The Los Angeles Daily News. Full article at http://www.dailynews.com/government-and-politics/20160628/la-city-hall-panel-backs-fining-companies-for-asking-applicants-about-past-crimes

OBAMA SUPPORTS “BAN THE BOX” FOR FEDERAL JOB APPLICATIONS

“President Obama said Monday he was directing federal agencies to “ban the box” in their hiring decisions, prohibiting them from asking prospective government employees about their criminal histories on job applications.

Speaking at Rutgers University in Newark, N.J., where he highlighted programs meant to ease the reentry of former inmates into society, Obama said the federal government “should not use criminal history to screen out applicants before we even look at their qualifications.”

It’s unclear how many federal agencies would be affected by Obama’s action. Many agencies already delay asking about criminal history until later in the hiring process, but Obama is directing the Office of Personnel Management to issue guidance making that practice universal across the federal government.

“It is relevant to find out whether somebody has a criminal record. We’re not suggesting ignore it,” Obama said. “What we are suggesting is that when it comes to the application, give folks a chance to get through the door. Give them a chance to get in there so they can make their case.”

And while civil rights groups applauded the move, many had hoped for an even more sweeping executive order. The American Civil Liberties Union called the move “an important first step,” but called on him to follow up with an order that would apply not only to federal employees, but federal contractors. Obama has used 15 similar orders during his presidency to force companies doing business with the government to raise the minimum wage, adopt non-discrimination policies and grant workers paid time off.

“While the president is with us in spirit, his administration is not yet ready to make an executive order a reality,” said Wade Henderson of The Leadership Conference on Civil and Human Rights.

White House spokesman Frank Benenati said the president prefers congressional action on contractors  “as the best path forward for making sure this effort will have the most significant impact and is written into law so it can last beyond this administration.”

Sen. Cory Booker, D-N.J., who is sponsoring that legislation with Sen. Ron Johnson, R-Wis., said Monday that he’s “really happy to see the president continue to push the envelope” and bring attention to the issue.

But the ban-the-box effort, he said,  “should be done legislatively, so that the stroke of another president’s pen can’t undo it.”

Obama highlighted offender reentry programs Monday in New Jersey as part of a nationwide tour to build support for Congress to overhaul the criminal justice system.

His first stop in Newark was a tour of Integrity House, a halfway house and drug rehabilitation center that gets 85% of its referrals from the criminal justice system. Meeting with former prison inmates who are now residents of the house, Obama said the center does “outstanding work with folks with addiction issues,” and said he hoped his visit would “highlight what is working” across the country.

Obama highlighted the story of Dquan Rosario, who served time in prison for drugs but then, at age 37, went back to school and is now an emergency medical technician in Newark. Obama said Rosario’s story shows it’s never too late for a second chance.

“There are people who have gone through tough times. They’ve made mistakes. But with a little bit of help, they can get on the right path. That is what we have to invest in, that is what we need to believe in,” Obama said.”

 

Originally posted by USA Today. Full article at http://www.usatoday.com/story/news/politics/2015/11/02/obama-tells-federal-agencies-ban-box-federal-job-applications/75050792/

BEST PRACTICES FOR COMPLYING WITH NEW YORK CITY FAIR CHANCE ACT

“Given the imminent effective date of New York City’s Fair Chance Act, employers may be wondering what they need to do to comply with the law.  As many employers are aware, effective October 27, 2015, the Fair Chance Act amends the New York City Human Rights Law to prohibit most employers from inquiring about criminal history until after a conditional offer of employment is extended. (Some employers may fall into the exceptions of this law.)  The law also imposes upon employers the obligation to provide applicants with a copy of the relevant inquiry (e.g. the consumer report) and the company’s analysis under Article 23-A of the New York Corrections Law (in a form provided by the New York City Commission on Human Rights (“NYCCHR”)).  On Friday, October 23, 2015, the NYCCHR released its Fair Chance Act Notice form, and is expected to release its enforcement guidance imminently.  In the meantime, we recommend employers consider the following:

  1. Review all pre-employment forms.  Employers should ensure that job advertisements, applications for employment, interview questionnaires, and all other pre-conditional offer documents make no reference to the fact that a background check will be conducted, that criminal history will be considered, or otherwise inquire about criminal history.
  2. Train hiring managers.  Hiring managers should be trained not to ask questions about criminal history prior to a conditional offer of employment.  If a job candidate independently informs the manager of his or her criminal background prior to a conditional offer, managers should be trained to respond that such information is not considered by the Company at this stage in the process.
  3. Revise the adverse action protocol.   The Fair Chance Act requires that prior to taking adverse action based on criminal history an employer:
    1. provide the applicant with a copy of the “inquiry” (which by definition includes “any question communicated to an applicant in writing,” “any searches of publicly available records,” or consumer reports);
    2. conduct an analysis in accordance with Article 23-A and provide a written copy of that analysis to the applicant, and any supporting documentation that impacted the analysis; and
    3. keep the job opportunity open for at least three business days after the applicant receives the above documentation before taking adverse action.

The law anticipates that employers provide a copy of the Article 23-A analysis in the form provided by the NYCCHR.

  1. Consider best practices for direct inquiries to the applicant.  Many employers may still wish to ask the applicant personally whether he or she has a criminal history.  Such inquiry is still permissible under the Fair Chance Act, provided (1) it occurs after a conditional offer of employment is given; (2) the applicant is provided a copy of the inquiry, at the same time as the applicant is given the consumer report and any Article 23-A analysis (as described above); and (3) the question otherwise complies with the state law limitations as to the type of criminal history an employer is permitted by law to consider.  Employers are still able to terminate or refuse to hire an individual who makes misrepresentations in responding to a criminal history inquiry, but employers should follow the notice protocol above and as set forth in the Fair Credit Reporting Act (FCRA) before taking action.
  2. Review FCRA disclosure forms.  Employers should ensure that their FCRA disclosure forms accurately describe the information to be obtained by the Company in a consumer report.  And, particularly in light of the Fair Chance Act’s companion law, the Stop Credit Discrimination in Employment Act (SCDEA), applicants should not receive disclosure forms mentioning that a consumer report may include credit history information, unless the applicant meets an exception under the law.”

Originally posted by Lexology. Full article at http://www.lexology.com/library/detail.aspx?g=79e01e92-5fd0-4607-9728-fb8575f23655

BMW SETTLES EEOC CRIMINAL BACKGROUND CHECK SUIT FOR 1.6 MILLION

“BMW Manufacturing Co. L.L.C. will pay $1.6 million to settle a U.S. Equal Employment Opportunity Commission lawsuit that charged it was liable for race discrimination in connection with its former criminal background checks policy, which allegedly disproportionately affected African-Americans, the agency said Tuesday.

The 2013 lawsuit filed in U.S. District Court in Spartanburg, North Carolina, alleged that when Spartanburg-based BMW switched contractors handling the company’s logistics at its production facility there in 2008, it required the new contractor to perform a criminal background screen on all existing logistics employees who reapplied to continue working in their positions at BMW, the EEOC said in a statement.

At that time, BMW’s criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony, the EEOC said.

According to the complaint, after the criminal background checks were performed, BMW learned that about 100 incumbent logistics workers at the facility, 80% of whom were black, were disqualified from employment. The EEOC lawsuit sought relief for 56 black employees who were discharged.

Under terms of the settlement, in addition to paying $1.6 million to resolve the litigation, BMW will offer employment opportunities to the discharged workers in the suit as well as up to 90 African-American applicants whom BMW’s contractor refused to hire based on BMW’s previous conviction records guidelines, among other provisions.

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.

BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background

checks is to ensure the safety and well-being of all who work at the BMW plant site.

“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.

The BMW plant in South Carolina is in a United States Foreign Trade Zone under the jurisdiction of the U.S. Department of Homeland Security. BMW is a member of the Customs Trade Partnership Against Terrorism (C-TPAT) and therefore has a business necessity to require criminal background checks not only for its employees but also the employees of vendors, temporary agencies, and contractors who have access to the plant site.” “

Originally posted by BusinessInsurance.com full article at http://www.businessinsurance.com/article/20150908/NEWS06/150909821

UBER BACKGROUND CHECKS MISSED CRIMINAL RECORDS

“The background-check service that ride-hailing company Uber uses to screen potential drivers did not flag the criminal records of 25 drivers who gave thousands of rides to customers in Los Angeles and San Francisco, prosecutors said Wednesday.

The findings were made public in an amendment to a consumer protection lawsuit filed last year by the district attorneys for Los Angeles and San Francisco. The suit alleges that Uber has misled customers about the safety of the app-based ride service, including how they screen potential drivers.

In the amended 62-page civil complaint, prosecutors detailed the criminal histories of 25 people who gave rides to passengers in Los Angeles and San Francisco in the last two years.

“I support technological innovation,” San Francisco Dist. Atty. George Gascón said in a prepared statement. “Innovation, however, does not give companies a license to mislead consumers about issues affecting their safety.”

The Times reported this month that four Uber drivers cited at Los Angeles International Airport had criminal records that would bar them from driving a taxi in Los Angeles.

Whether ride-hail drivers should be held to the same background-check standards as taxi drivers has been the subject of hours of testimony at Los Angeles City Hall, as lawmakers prepare to vote on a permit process that would allow Uber and its main competitor, Lyft, to pick up passengers at LAX.

Prospective Uber drivers are not required by state law to submit fingerprints as part of their background checks. The company says its background-check service identifies all criminal convictions in the last seven years.

By contrast, the Los Angeles Department of Transportation runs the prints of potential taxi drivers through federal criminal databases.

Uber and Lyft use services that can process screenings within days. They have both argued that using fingerprint checks would be redundant.

In a prepared statement, Uber spokeswoman Eva Behrend said that no background check is “100% foolproof.” Running fingerprints through state and federal databases can flag the criminal records of people who have been arrested but not convicted, “which can discriminate against minorities,” she said.

According to the amended lawsuit complaint, one driver was convicted of second-degree murder in Los Angeles and spent 26 years in prison. He gave a different name when he applied to drive for Uber, and a background report said he had no known aliases and no criminal history, the complaint said. The driver gave 1,168 rides over seven months, according to the prosecutors’ court filing.

Using fingerprints and checking federal databases would have identified the man’s criminal history, prosecutors said.

Prosecutors also said they found three unlicensed drivers who used someone else’s account to drive for Uber.

Five drivers had convictions for driving under the influence in the last seven years, the complaint said, and some still drive for Uber. The company has said it bars applicants with convictions for DUI in the preceding seven years.

Several drivers were convicted of fraud, including one driver convicted in 2010 of 29 felony counts of theft, grand theft, filing false or fraudulent real estate deeds, and money laundering, according to the complaint.”

ANOTHER CIRCUIT COURT RULES PAID SUSPENSION IS NOT ADVERSE EMPLOYMENT ACTION FOR TITLE VII

“Addressing an issue of first impression, the federal Third Circuit Court of Appeals (which covers Delaware, New Jersey and Pennsylvania), recently held that an employee’s suspension with pay is not an adverse employment action for purposes of Title VII. In doing so, the Third Circuit has joined several of its sister Circuits across the country, including the Second, Fourth, Fifth, Sixth and Eighth Circuits.

The case, Jones v. Southeastern Pennsylvania Transportation Authorityinvolved an employee who was suspended with pay while her employer investigated allegations that she had submitted fraudulent timesheets. She didn’t suffer any loss of income or compensation. She was off workwith pay. Nevertheless, the employee sued her employer claiming, among other things, sex discrimination and sexual harassment.

In evaluating whether or not the paid suspension could be considered discriminatory, the Third Circuit observed that Title VII prohibits discrimination with respect to decisions concerning hiring, firing, compensation and other terms and conditions of employment. Because suspending an employee with pay does not neatly fall within these categories, the court concluded that such a paid suspension could not be an adverse employment action for Title VII purposes. The lack of an adverse employment action similarly negated the plaintiff’s sexual harassment claim.

All in all, the decision is good for employers and ensures that those who do go the extra mile to suspend with pay do not get burned for doing so. Although the decision does not guarantee that an employee will not sue over a paid suspension, it does effectively curtail a Title VII claim in this context – and particularly in the Circuits that have adopted this rule. And doing so makes perfect sense: it smacks of unfairness that a company which pays an employee on leave might then be forced to also pay to fend off a discrimination or harassment claim filed by the very same employee who was on the paid suspension.

Practically, what does this case mean for employers? They have a choice to make: (a) pay the suspended employee and eliminate the potential for a discrimination claim; or (b) choose not to pay the suspended employee and accept the risk that the employee – and a court – would find the lack of payment as an adverse employment action.

Whatever choice employers make, they also must make certain they handle similar decisions uniformly and not in a way that would be perceived as discriminatory: selectively suspending some employees with pay but not others (i.e. those who are not be in protected classes) would only create a bigger problem. As with everything in the employment arena, employers constantly must evaluate the risks and benefits of their individual actions, while simultaneously keeping the big picture in mind.”

Originally posted by The National Law Review. Article can be found at http://www.natlawreview.com/article/not-all-good-deeds-are-punished-paid-suspension-not-adverse-employment-action-title-

SCOTUS HOLDS THAT EEOC CONCILIATION EFFORTS ARE SUBJECT TO LIMITED JUDICIAL REVIEW

I. Procedural Background and Party Positions

“After investigating a gender discrimination claim against Mach Mining, the EEOC determined that reasonable cause existed to believe that the company had engaged in unlawful hiring practices. The EEOC sent a letter inviting Mach Mining and the claimant to participate in informal conciliation proceedings. About a year later, the EEOC sent Mach Mining another letter stating that it had determined that conciliation efforts had failed – pursuant to the statutory mandate that conciliation discussions remain private, the evidence record did not reflect what negotiations, if any, took place in the interim. The EEOC then sued Mach Mining in federal court.

In its responsive pleadings, Mach Mining asserted, as an affirmative defense, that the EEOC had not attempted to conciliate in good faith. The EEOC responded by arguing: (1) that conciliation efforts were not subject to judicial review; and (2) that the two letters sent to Mach Mining provided sufficient proof that the EEOC had fulfilled its statutory duty to conciliate. The district court agreed with Mach Mining, holding that the adequacy of the EEOC’s conciliation efforts was subject to judicial review. The EEOC appealed, and the Seventh Circuit reversed the District Court, finding that the EEOC’s statutory obligation to conciliate was unreviewable. Mach Mining then sought review in the United States Supreme Court, andcertiorari was granted.

The parties presented unwavering and starkly opposite arguments to the Supreme Court. The EEOC’s position was that Title VII allotted complete discretion to the Commission; therefore, its conciliation efforts were not subject to judicial review. The only concession made by the EEOC was that, if the Court were to deem the conciliation process reviewable, then the EEOC’s letters to Mach Mining provide sufficient evidence of the Commission’s compliance with the statutory mandate to conciliate – as long as the EEOC issues two letters, courts have no authority to consider any other evidence regarding the conciliation process. Mach Mining, on the other hand, argued that courts should be able to employ the NLRA’s standard of “good-faith bargaining” with regard to the EEOC’s conciliation efforts, which would require courts to delve deeply into the facts surrounding each and every conciliation process.

II. The Opinion

In a unanimous opinion, authored by Justice Kagan, the Court held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But [the Court found] 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.” Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1649 (2015). Sounds good in theory, right? To unpack this holding, one must look at each of the issues addressed by the Court and, more importantly, the issues that were not addressed.

First, the Court had to dispose of the EEOC’s argument, and Seventh Circuit’s holding, that the EEOC’s conciliation efforts were not judicially reviewable. To do so, the Court cited case law precedent that applies a “strong presumption” favoring judicial review of administrative action. See Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986). The Court reasoned that, because the EEOC’s participation in conciliation efforts is a mandatory prerequisite to filing a lawsuit under Title VII, courts must be able to exercise some oversight in the process. As the Court stated:

Yes, [Title VII] 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. But no, Congress has not left everything to the Commission.

Mach Mining, 135 S.Ct. at 1652 (emphasis in original) (citations omitted). The Court’s view was predicated on the idea of culpability:

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.

Id. at 1652-53.

Having determined that the EEOC’s conciliation efforts are subject to judicial review, what, then, is the scope of such review? The Court denied each side’s proposed standard. First, the Court denied the EEOC’s argument for “the most minimalist form of review imaginable,” reasoning that “a court needs more than the two bookend letters the Government proffers” in order to verify the Commission’s compliance with Title VII. Id. at 1653. Likewise, the Court rejected Mach Mining’s proposed framework, similar to that used in the NLRA, because the NLRA and Title VII serve different purposes. While Title VII is focused strictly on results – to eliminate unlawful discrimination in the workplace – the NLRA aims to create a “sphere of bargaining” in which both sides are obligated to bargain fairly. Id. at 1654. To treat Title VII conciliation like labor negotiations, the Court held, would be to adopt rules that “do not properly apply to a law that treats the conciliation process not as end in itself, but only as a tool to redress workplace discrimination.”Id. The Court additionally noted that Mach Mining’s proposed scope of judicial review would undermine the EEOC’s discretion and confidentiality mandated by Title VII. See id. at 1655.

The Court held that the appropriate scope of review enforces Title VII’s requirements, “the EEOC afford the employer a chance to discuss and rectify a specified discriminatory practice—but goes no further.” Id. at 1653. As the Court explains:

[Title VII] demands…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. 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.’ 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.

Id. at 1655-56. To show, then, that the EEOC did not comply with Title VII during conciliation, an employer must provide credible evidence (typically by sworn affidavit) indicating that the EEOC “did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim,” which would then allow a court to conduct the necessary factual inquiry to decide the dispute.

III. Lingering Issues

So, the Court has defined Title VII conciliation as a tool to remedy workplace discrimination (nothing new there). What is interesting, however, is that the Court inferentially mandated that the remedy of the allegedly discriminatory practice be the beacon of conciliation. How does that work? Let’s say, for example, that Mach Mining had said during conciliation, “Okay, EEOC, we know there is a problem. We will hire the claimant, pay her the wages she would have earned up to her first day of work and adjust our hiring practices and facilities accordingly.” By the Court’s ruling, this would seem to be a sufficient offer to remedy the alleged discrimination. But, what if the EEOC rejects this proposal? What if the EEOC wants to make an example out of Mach Mining? Can they do that? Sure they can. The Court does not disturb the extensive discretion allotted to the EEOC in determining a satisfactory settlement or in determining its motive for accepting or rejecting settlement. As you can see, although the Court’s holding has established the allowance of judicial review, it does not allow courts to interpret the rationality of the EEOC’s positions. Courts may only determine whether the Commission went through the proper procedures and put the employer on notice of the claim. For a results-oriented statute, as the Court described Title VII, this scope of judicial review does not seem to facilitate the results that Title VII theoretically endeavors to achieve. ”

 

Originally posted by The National Law Review.  Article can be found at http://www.natlawreview.com/article/us-supreme-court-holds-eeoc-conciliation-efforts-are-subject-to-limited-judicial-rev