If you have never had to deal with the federal Equal Employment Opportunity Commission (“EEOC”), you may be happily unaware that it’s the federal agency that investigates and enforces federal employment anti-discrimination laws. If the EEOC investigates a complaint and finds that discrimination did occur, then it is supposed to try to “conciliate” the case—work with both sides to reach an agreement that ends the discrimination. If conciliation doesn’t work, either the discriminated-against employees or the EEOC itself has the right to sue in court to get the employer to stop discriminating and make the employees whole. To victims of discrimination who can’t afford a lawyer, or are still working at their jobs and are afraid of retaliation, having the EEOC file a suit is a lifeline.
However, the EEOC’s ability to file lawsuits is under threat from employers claiming that the EEOC hasn’t tried hard enough to conciliate. This allegation is the subject of a case in the Supreme Court called Mach Mining, LLC v. Equal Employment Opportunity Commission, and the Court will hear arguments about it on January 13. This case began in early 2008, when a woman informed the EEOC that the Mach Mining company had failed to hire her or any other woman for a mining position, and after an investigation, the EEOC agreed. It spent a year trying to conciliate with Mach Mining, then gave up and filed a lawsuit in federal court. Mach Mining managed to delay the case for the next few years by trying to convince the court that the EEOC hadn’t really tried hard enough to conciliate, after all. Several appeals later, the Supreme Court will decide whether and how much a court can or should Monday-morning-quarterback the EEOC’s efforts at conciliation.
The answer to this question is important to victims of discrimination because that Monday-morning-quarterbacking prevents the EEOC from getting on with its job of pursuing lawsuits on behalf of victims of discrimination at work. Conciliation is a lot less work than a lawsuit, so the EEOC already has incentives to do it well. But if the EEOC has to convince courts that its conciliation process was a good one, that convincing takes additional time. It probably also means that the conciliation process itself will take even more time than it already does, because the EEOC will have to document its efforts even more strenuously, knowing it will later have to prove in court that those efforts were good enough. Mach Mining knows perfectly well that asking a court to review the EEOC’s conciliation efforts causes delays. Mach Mining knows perfectly well that delays work to its advantage when it comes to defending discrimination lawsuits, because over time people’s memories fade, witnesses move away with no forwarding address, documents and other pieces of evidence get lost, and victims of discrimination get frustrated and give up. All that delay prevents the EEOC from bringing the lawsuits it needs to bring in order to enforce anti-employment-discrimination laws.
So while the EEOC is mired in endless conciliation, and then endless court time demonstrating that its conciliation efforts were sufficient, what happens to the employee who first reported that discrimination? Legal Momentum, together with Equal Rights Advocates, Sanford Heisler LLP, and sixteen women’s rights organizations and individuals, filed a friend-of-the-court brief in the Supreme Court explaining how the delays caused by court review of EEOC conciliation can have dire repercussions for women working in non-traditional occupations like construction and mining. Women everywhere experience sexual harassment, but the numbers are even worse for women who do what has traditionally been considered “men’s” work. Eighty-eight percent of women construction workers experience sexual harassment—more than three times the rate of women in the general workforce. And when the co-workers who are harassing you won’t support you in a job that is physically dangerous—like policing, firefighting, mining, and construction—then the consequences of harassment can be life-threatening. Equal Rights Advocates represents a female gold miner, one of only two women out of the 300 miners at her workplace who work underground. On several occasions, men have purposefully interfered with the underground microphone system while she drills so that she can’t communicate with her coworkers and her supervisor in an emergency. Concerned coworkers have told her that if she continues to “try to change the male culture of mining” (by being a woman in a mine), she should “watch her back” because some of the men working are “not very nice.”
Nobody should have to worry about harassment or physical violence from their co-workers; that’s what the federal employment anti-discrimination laws are for. But if the Supreme Court rules in favor of Mach Mining, that will make it significantly harder for the EEOC to do its job—and as a result, a lot of victims of discrimination out there will have a much harder time doing their jobs as well.
Contributed by Christina Brandt-Young, Senior Staff Attorney