- Associated Press - Tuesday, January 13, 2015

WASHINGTON (AP) - The Supreme Court seemed troubled Tuesday by the Obama administration’s aggressive defense of its strategy for targeting job discrimination in the workplace.

Several justices said courts should have some oversight to make sure the government is diligently trying to settle cases before taking companies to court.

The dispute pits the administration against business groups that say the Equal Employment Opportunity Commission is too quick to bring expensive lawsuits against companies instead of trying to negotiate settlements.

Federal law requires the EEOC to try informally settling cases first, but the question is how much can a court peer into those negotiations to make sure the EEOC is not unreasonable.

The government insists that courts should have no role in probing confidential settlement talks, while business groups want to be able to raise any ineffective settlement effort as a defense. The Obama administration’s growing crackdown on claims of job bias has netted over $100 million in legal judgments and settlements from more than 50 companies since 2011.

Justices on both sides of the ideological spectrum indicated Tuesday that there should be some minimal way for courts to make sure the government is not being unreasonable, without undercutting the EEOC’s negotiating strategy. But they grew increasingly frustrated when government attorney Nicole Saharsky wouldn’t budge.

What if the EEOC simply refused to negotiate at all with an employer it threatened to sue, Justice Sonia Sotomayor asked.

“You don’t review it,” Saharsky replied.

That didn’t sit well with Chief Justice John Roberts, who said it seemed “utterly unreasonable” that a court couldn’t review the government’s actions.

“So just trust you?” Roberts asked.

Saharsky said the problem is that once a court begins probing settlement efforts, it turns into a “mini trial” on whether the EEOC tried hard enough to settle. She said that undermines the agency’s law enforcement goals and tempts employers to drag out settlement talks.

The case before the court involves an Illinois mining company sued by the EEOC for allegedly failing to hire qualified female job applicants. The government alleges Mach Mining LLC has never hired any female miners since it began operations in 2006, despite getting applications from many qualified women.

The company says the lawsuit should be thrown out because the EEOC didn’t put enough effort into settlement talks before filing a lawsuit. The 7th U.S. Circuit Court of Appeals ruled against the company, saying judges have no right to peer into the settlement process.

Tom Goldstein, attorney for Mach Mining, said his client wants “a modest inquiry.” He said the EEOC should tell the company what it would take to resolve the case and “it has to be something they could legally get.”

But Justice Elena Kagan said Goldstein was asking for far too much, helping to prove the government’s point about intrusive court oversight.

Justice Anthony Kennedy said the court was “looking for a safety net” and wanted the administration’s help in crafting a standard of review.

“All I hear is no review, period, goodbye,” Kennedy said of the government’s position.

Justice Antonin Scalia suggested the court could set standards to limit review.

“That’s the world. There is always litigation over stuff,” Scalia said.

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