Age Issue Overlooked in U.S. Supreme Court Debate

The U.S. Supreme Court on January 13 will hear arguments in an important case in which industry groups are seeking to force the U.S. Equal Employment Opportunity Commission (EEOC) to engage in time-consuming and fruitless  “conciliation” efforts with recalcitrant employers prior to filing a lawsuit against the employer.

One federal appeals court has characterized the so-called “failure to conciliate” defense  – which permits employers to argue that the EEOC didn’t try hard enough to settle a case before filing a lawsuit – a cynical tactic that employers pursue to waste EEOC resources and delay a finding of  liability for employment discrimination.

Interminable delays arguably have the most severe impact  in age discrimination cases because older workers have less time remaining in the workplace (and elsewhere) to achieve justice under the law. I wrote an article this week about two plaintiffs in an age discrimination case who actually died while their cases languished in a Kansas federal court for almost a decade.  Yet, the issue of the devastating impact of delay in age discrimination cases has not been raised in the Mach Mining case.

The U.S. Congress requires the EEOC to conduct conciliation proceedings as a precondition to suing an employer for employment discrimination. In some cases, federal judges have issued one ruling that unilaterally dismisses dozens of substantive claims brought by victims of  egregious discrimination because they deemed the EEOC’s conciliation efforts to be inadequate.

In early 2008, the EEOC received a complaint from a woman  alleging that Mach Mining had denied her employment as a coal miner because of her sex. The EEOC chose to prosecute the case, thereby depriving the woman of the right to file a federal lawsuit on her own behalf. The EEOC presented Mach Mining with a verbal conciliation demand in an effort to resolve the dispute, which Mach Mining rejected. The EEOC then filed a class action lawsuit alleging that Mach Mining  had never hired a woman for a mining position and did not even have a women‘s changing room.  For more details about the issue and the case, see Mach Mining v. EEOC.

For six years, Mach Mining has successfully shifted the focus of the case from its alleged systemic hiring discrimination against women to whether the EEOC engaged in sufficient conciliation efforts prior to filing suit. And that’s the problem with the “failure to conciliate” defense.  At best, it delays justice while the parties squabble over what should be a simple procedural matter.  Did the EEOC make an offer of conciliation?  Did the employer accept or reject the offer?

The U.S. Supreme Court is currently the focus of furious lobbying efforts led by the U.S. Chamber of Commerce to obtain the Court’s stamp of approval for judicial oversight over the EEOC’s conciliation efforts.  In addition to the Chamber, an amicus brief was filed by the Society for Human Resource Management, the world’s largest human resources membership organization, and  the so-called Equal Employment Advisory Council, a nationwide association of employers that includes over 250 major U.S. corporations; the American Insurance Association; and, the Retail Litigation Center, Inc.

On the other side, an amicus brief supporting he EEOC’s position was filed by the states of Arizona, Hawaii, Illinois and Washington; the  “women’s rights organizations” Equal Rights Advocates of San Francisco and Legal Momentum of New York; and the Impact Fund, a nonprofit foundation based in Berkeley California that focuses on public impact litigation involving civil rights, environmental justice and poverty law. Signing on to the Impact Fund’s amicus brief were the AARP,  the National Employment Lawyers Association; Asian Americans Advancing Justice – Asian Law Caucus;  Disability Rights California;  and, Public Counsel.

The brief filed by the Impact Fund was general in nature and did not address how the so-called “failure to conciliate” defense affects specific groups like older workers.  Ideally, the AARP, which touts itself as the nation’s premiere advocacy group for Americans over the age of 50, would have followed the example of the women’s groups by filing an independent amicus brief addressing the particularly severe impact of  needless delay in age discrimination cases.

In my recent book, Betrayed: The Legalization of Age Discrimination in the Workplace, I argue that age discrimination  in employment is epidemic in the United States because the Age Discrimination in Employment Act  of 1967 was weak to begin with and has been eviscerated by the U.S. Supreme Court.   Older workers literally are treated like second class citizens under the laws of the United States.  Meanwhile, the EEOC has virtually ignored a record increase in age discrimination complaints brought during and since the Great Recession.