Second Circuit Sides with EEOC on Review of Its Investigation of Massive Gender Discrimination Case

Jocelyn D. Larkin Executive Director, Impact Fund

Jocelyn D. Larkin
Executive Director, Impact Fund

When the Supreme Court issued its ruling last spring in Mach Mining v. EEOC, 135 S. Ct. 1645 (2015), employer representatives gleefully claimed victory for the strategy of defeating cases on the grounds that the EEOC did not properly conciliate before filing the lawsuit.

The Second Circuit’s decision today in EEOC v. Sterling Jewelers, No. 14-1782 (2d Cir. Sept. 9, 2015) suggests that the victory dance may have been premature. The court reversed the district court’s order granting summary judgment for the agency’s alleged failure to conduct a sufficient investigation before filing suit. Relying on Mach Mining, the panel held that the district court may only consider whether the EEOC investigated, not whether the investigation was sufficient.

Quoting Mach Mining, the Court said: “To second guess the choices made by the EEOC in conducting an investigation ‘is not to enforce the law Congress wrote, but to impose extra procedural requirements. Such judicial review extends too far.’”

We hope that our friends over at the EEOC are doing a discrete little two-step of their own today.