Don Livingston Speaks with Reuters for Q&A on Supreme Court’s Mach Mining Decision
Akin Gump labor and employment partner Don Livingston was interviewed by Reuters for the Q&A column “Mach Mining could impact EEOC’s ‘unlawful’ settlement demands.
Livingston, a former general counsel of the Equal Employment Opportunity Commission (EEOC), answered questions about the Supreme Court’s decision in Mach Mining v. EEOC, in which the Court ruled unanimously that Title VII of the Civil Rights Act of 1964 vests broad discretion in the EEOC to decide when to settle discrimination claims. He said the case was a win for the commission, but also opened the door to courts scrutinizing what he described as routinely unreasonable or unlawful demands during the so-called conciliation process.
Among the other topics Livingston discussed:
- How will this play out in court when employers claim the EEOC failed to conciliate? “I could foresee under Mach Mining, where conciliation reached an impasse over an unlawful demand, the court requiring the commission to go back and make a lawful proposal. The court would stay the suit for 60 days and order the parties to try to resolve the case.”
- Could Mach Mining prompt the EEOC to be proactive and stop making these demands? “No. … I believe the agency will force companies to test the limits of Mach Mining in court.”
- Is there an open question about how far judges can go in asking for those details, given the confidentiality of conciliation? “I don’t believe the details of unlawful proposals are protected by Title VII confidentiality. … Under Mach Mining, you could see how a court might say that if EEOC is insisting the company pay for a claim it can never bring, conciliation has not really occurred (and so confidentiality doesn’t apply).”
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