Most employers would suggest the answer is “yes.” However, since the federal courts are split on this issue, the U.S. Supreme Court will consider it on January 13, 2015.

The Law.  The federal Equal Employment Opportunity Commission (EEOC) is charged with upholding federal civil rights and anti-discrimination laws. The relevant law[1] in this cases states that “[w]henever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the EEOC, alleging that an employer . . . has engaged in an unlawful employment practice, the EEOC shall serve a notice of the charge … within ten days, and shall make an investigation thereof…. Charges shall not be made public by the EEOC [emphasis added]. . . . If the EEOC determines after such investigation that there is reasonable cause to believe that the charge is true, the EEOC shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the EEOC ….” The important point in this provision is that charges are no public, pending their possible resolution during the conciliation process.

From the EEOC’s perspective, however, what’s to prevent an employer from indefinitely delaying of the ultimate lawsuit brought by the EEOC in the name of “conciliation” ? That’s covered in a different provision. “If within thirty days after a charge is filed with the Commission …the Commission has been unable to secure from the [the employer] a conciliation agreement acceptable to the EEOC, the EEOC may bring a civil action[2]  against [the employer]….” Once a civil action is filed, of course, everything is a matter of public record. Summary, the employer should get 30 days to try and privately address (and resolve) the charges.

Mach Mining. In early 2008, the EEOC received a charge of discrimination against Mach Mining, a coal mining company, by an employee, alleging that she had been denied employment as a coal miner because of her sex. The EEOC conducted an investigation that did not support the employee’s charges. The EEOC then presented Mach Mining with a verbal conciliation demand, but later notified the employer that it had determined that the conciliation process had failed and that further discussions would be futile. A few days later, the EEOC sued Mach Mining in federal court alleging that petitioner had either engaged in “a policy or practice of not hiring women for mining and related positions.” The same day, the EEOC issued a press release, featuring inflammatory quotes from EEOC attorneys, including the assertion that “Mach Mining needs to realize that this is 2011, not 1911.” Mach Mining defended the EEOC’s civil rights lawsuit by asserting that it had been denied the statutory opportunity to resolve these issues privately and consensually.

You can read all of the court documents related to this case by visiting the website of the United States Supreme Court.

[1] Section 2000e-5(b) of Title 42 of the United States Code

[2] Section 2000e-5(f)(1) of Title 42 of the United States Code