There may be new content on the horizon for the popular website Notorious R.B.G. (Justice Ruth Bader Ginsburg, in all her glory)! (See our earlier coverage here.) I say this because yet another U.S. Supreme Court case involving gender discrimination litigation is being argued today. Who knows? If things go south for the victims, we may again get to hear R.B.G read aloud an impassioned dissent and watch Justice Samuel Alito disrespectfully roll his eyes.
This case, Mach Mining, L.L.C. v. Equal Employment Opportunity Commission, involves litigation not by private plaintiffs but by the Equal Employment Opportunity Commission. The EEOC is the federal agency charged with stopping illegal gender discrimination under federal law, but has suffered for years from under-funding and under-staffing, leading to significant enforcement failures. Yet as this case shows, corporations still complain about what it does. To wit, writes MSNBC:
In 2008, a woman applied to be a coal miner at Mach Mining in Marion, Illinois. She didn’t get the job. No woman ever had.
Was Mach Mining systematically discriminating against women? The [EEOC says] it was. …
But that’s not the question before the Supreme Court today. Instead, the Court is hearing arguments on a seemingly arcane procedural issue in the case that could make it much easier for employers to get rid of such discrimination lawsuits. …
Before filing a lawsuit on behalf of someone who has been discriminated against, usually under Title VII of the Civil Rights Act, the EEOC can negotiate a settlement, a process known as “conciliation.” Mach Mining wants to open up that process to the scrutiny of a court [but] the EEOC says it has to keep the process confidential to protect workers and that whether or not it sues is a matter of the agency’s discretion. The Civil Rights Act, the federal agency wrote in its brief, “leaves to the Commission the ultimate decision whether to enter into a conciliation agreement or to sue.”
The Seventh Circuit Court of Appeals agreed with the EEOC. The process Mach Mining wanted, the panel wrote, “invites employers to use the conciliation process to undermine enforcement of Title VII” of the Civil Rights Act, which bans discrimination in employment.
If Mach Mining wins this case, it means private enforcement, and specifically class action litigation, will be even more important for victims of gender discrimination. These cases supplement the EEOC’s already problematic public enforcement role – a role that may grow even more difficult depending on how the Court majority rules.
Let’s also note that Congress has specifically recognized the importance of class actions to remedy workplace bias. (See more here.) As the NAACP Legal Defense and Education Fund wrote, when Congress amended Title VII in 1972, "it expressly affirmed that class actions should be widely available to challenge employment discrimination.”
Private enforcement seems to becoming more important by the day.