Back in February Circuit Splits featured a post on the Eastern District of California’s decision in EEOC v. Alia Corp., which identified an emerging split in authority over the appropriate standard for reviewing whether the Equal Employment Opportunity Commission (EEOC) has attempted to conciliate in good faith. Case No. 1:11-cv-01549 LJO BAM (E.D. Cal. Feb. 6, 2012).
To briefly recap, the court in Alia Corp. noted that the Second, Fifth, and Eleventh Circuits require courts to evaluate "the reasonableness and responsiveness of the EEOC's conduct under all the circumstances,” EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (quoting EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir.1981)), but the Sixth and Tenth Circuits afford the EEOC greater deference in carrying out its conciliation obligation under Title VII. The court in Alia Corp. also pointed out that, while “[t]he Ninth Circuit has not weighed-in on the issue,” the district courts within the Ninth Circuit “have generally tilted toward the approach taken by the Sixth and Tenth Circuit.”
Last Wednesday, yet another district court within the Ninth Circuit addressed this issue:
"[T]here is a split among the [circuit courts] regarding the proper standard for reviewing whether the EEOC has attempted to conciliate in good faith." EEOC v. Alia Corporation, __ F. Supp. 2d __, 2012 U.S. Dist. LEXIS 14148, 2012 WL 393510 at *9 (E.D. Cal. Feb. 6, 2012), quoting EEOC v. Timeless Investments, Inc., 734 F. Supp. 2d 1035, 1052 (E.D. Cal. 2010). The Ninth Circuit has not weighed-in on this issue, but district courts within the circuit "have generally tilted toward the approach taken by the Sixth [EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1102 (6th Cir. 1984)] and Tenth Circuits [EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978)], affording the EEOC wide deference in discharging its duty to conciliate." 2012 U.S. Dist. LEXIS 14148, [WL] at *10, citing among others, EEOC v. Cal. Psychiatric Transitions, Inc., 644 F. Supp. 2d 1249, 1273 (E.D. Cal. 2009) (applying the deferential standard expressed by the Sixth Circuit in Keco). The Alia court concluded that it too, in evaluating the sufficiency of the EEOC's conciliation efforts in the case before it, would defer to the judgment of the EEOC and confine its inquiry to whether the EEOC "made an attempt at conciliation." Id., quoting Keco, 748 F.2d at 1102 (emphasis in original). Thus so long as [the defendant] was given "an opportunity to respond to all [the] charges and [to] negotiate settlement[]," the EEOC fulfilled its statutory duty to conciliate in good faith." Id., quoting EEOC v. Prudential Federal Sav. & Loan Asso., 763 F.2d 1166, 1169 (10th Cir. 1985).
Even under what is purportedly the more deferential standard, not just any attempt at conciliation will suffice. It must be a "good faith" attempt. The purportedly more stringent standard adopted by the Second, Fifth and Eleventh Circuits requires courts to evaluate "the reasonableness and responsiveness of the EEOC's conduct under all the circumstances." Alia, 2012 U.S. Dist. LEXIS 14148, 2012 WL 393510 at *9, quoting EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981), and citing EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003), and EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2nd Cir. 1996). Under this standard, the EEOC must at least: (1) outline to the employer the reasonable cause for its belief that a violation of the law has occurred; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. Asplundh, 340 F.3d at 1259. It is noted, however, that there are district courts within the Ninth Circuit which, although following what is purportedly the more deferential standard, appear to nonetheless require the minimum effort articulated by the circuits employing the purportedly more stringent standard. Thus, in EEOC v. California Psychiatric Transitions ("Psychiatric Transitions II"), 725 F. Supp. 2d 1100, 1114-15 (E.D. Cal. 2010), the court stated: "[T]he law requires no more than a good faith attempt at conciliation by the EEOC; in doing so, the EEOC must outline the basis for its determination of discrimination, offer an opportunity for voluntary compliance, and respond flexibly to the reasonable attitudes of the employer." (Emphasis added).
EEOC v. Evans Fruit Co., NO. CV-10-3033-LRS (E.D. Wash. May 24, 2012) (alterations in original).
Given the frequency with which this issue has come up in district courts within the Ninth Circuit, it is only a matter of time before the Ninth Circuit will be asked to pick a side, at which point the issue would be ripe for review by the Supreme Court for several reasons:
- First, the Supreme Court is more likely to grant a case inolving a federal administrative agency than one brought by an individual or even a corporation.
- Second, the Supreme Court typically waits until a particular issue has fully “percolated” within the circuit courts before granting cert. This usually means that at least three circuits have weighed in on the issue. Here, five circuits have already addressed the issue.
- Third, in the past, the Supreme Court has agreed to review a disproportionate number of cases out of Ninth Circuit. A decision on this issue from the Ninth Circuit may be too tempting for the Court to pass up.
- Finally, the Supreme Court is more likely to review an issue on which the circuits are deeply divided. Here, if the Ninth Circuit adopts the position taken by the majority of district courts within its Circuit, the resulting 3-3 split would not likely “work itself out” over time absent guidance from the Supreme Court.
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