A general view of the US Supreme Court in Washington, D.C., Dec. 30, 2014.
Photo by Jim Watson/AFP/Getty

Supreme Court puzzles over discrimination process

WASHINGTON – The low point for the Obama administration — and for employees alleging discrimination — came with a question from Chief Justice John Roberts on Tuesday.

“We’re supposed to assume complete good faith on the government’s part and complete bad faith on the part of employers?” said Roberts incredulously.

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The case, Mach Mining v. Equal Employment Opportunity Commission, concerns the process by which employees, or potential ones, can bring discrimination claims against employers. The EEOC, a federal agency that enforces the employment parts of the Civil Rights Act, is supposed to engage in at least 30 days of “conciliation” before filing any lawsuit against an employer. Mach Mining, an Illinois company that had never hired a woman and was sued by the agency for sex discrimination, wants to open up that conciliation process to the scrutiny of a court. In other cases, that has helped make the discrimination case go away. The EEOC says it has full discretion over the conciliation process.

Thomas C. Goldstein for petitoner. (Photo by Art Lien)
Thomas C. Goldstein for petitoner.
Art Lien

During Roberts’ time in private practice, as The New Yorker’s Jeffrey Toobin has put it, “a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals.” Such corporate defendants aren’t huge fans of the EEOC, or the sometimes costly lawsuits it brings. They have claimed in court that the conciliation process didn’t give them a fair shake. 

That’s where Roberts’ question came in.

What if, Roberts asked, the Equal Employment Opportunity Commission — the federal agency that enforces anti-discrimination law — said it had tried to conciliate with an employer, as it is required to by law, but it was actually lying? Say, for example, it had never even sent the letter it claimed to?

Assistant Solicitor General Nicole Saharsky never quite answered the question, but just repeated that the law says the conciliation process isn’t subject to a court’s peering eyes.

A majority of the court seemed poised to put some limits on the EEOC’s discretion in the conciliation process, but the question is how much. “You have given us no middle way,” complained Justice Anthony Kennedy, “other than to say, ‘no judicial review.’” 

The government, along with women’s rights organizations that are attuned to the sex discrimination claims made against the mining company in the case, said adding new legal proceedings to the process are just a way to delay it and mire defendants in more expensive litigation.

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“That’s the world,” Justice Antonin Scalia harrumphed. “There’s always litigation over stuff.” 

He noted, as Mach Mining has, that the EEOC has an incentive to file “big deal lawsuits” to get press attention, rather than quietly reach a conciliation agreement. Saharsky disputed that, pointing out the agency has scarce resources for litigation and many more claims than it can bring to court.

Justice Marshall's widow, Cecilia, in audience at Supreme Court. (Photo by Art Lien)
Justice Marshall’s widow, Cecilia, in audience at Supreme Court.
Art Lien

Justice Ruth Bader Ginsburg, who made her name litigating sex discrimination claims, repeatedly pointed out that the process isn’t like collective bargaining, to which it was repeatedly compared, because the employer is under no obligation to make any offer.

She wondered what a conciliation process could accomplish under circumstances like the one in the Mach Mining case, where no woman had ever been hired as a miner, and where “they built a new facility, they don’t have a women’s bathroom.” 

But it wasn’t all easy territory for the corporate defendants, a mining company for whom Tom Goldstein (also the proprietor of SCOTUSblog) argued today. At the end of argument, he returned to the podium and began suggesting new benchmarks that the Supreme Court could lay out for the EEOC’s conciliation process.

“You’re doing the best job of proving Ms. Saharsky’s point” by listing too many demands on the EEOC that give the employer a way out, said Justice Elena Kagan.

Roberts and Ginsburg weren’t the only justices who brought previous experience to the case. Justice Clarence Thomas served as President Ronald Reagan’s chair of the EEOC. (Anita Hill, who accused him of sexual harassment, worked for him at the agency.) As usual, Thomas did not say a word in oral argument.

Meanwhile, sitting in the front row of the general seating area was Cecilia Marshall, widow of Justice Thurgood Marshall, a lion of the civil rights movement. When Marshall retired, Thomas took his seat.