Less than two weeks ago, the U.S. Supreme Court agreed to hear a case in which the trial court awarded attorneys’ fees against the EEOC for some $4.7 million. (SCOTUS Benchslap For EEOC On the Way?) While the case is now before the Supremes, the EEOC continues to squirm in the trial court, trying to avoid what is one, if not the most, embarrassing result in its 50+ year history.

The CRST trial court awarded fees against the EEOC because the EEOC had utterly failed to investigate or conciliate the allegations raised by 67 aggrieved individuals. Like a third-grader caught without a completed homework assignment, the EEOC scrambled to manufacture a clever excuse for its failures. Now, the EEOC argued that the fee award was based on a new and unanticipated interpretation of its investigation and conciliation duties as a result of the Supremes’ April, 2015 decision in Mach Mining, LLC v. EEOC. (Supreme Benchslap for EEOC) The Mach Mining decision held that the EEOC’s negligible attempts to conciliate a cause determination prior to suit is subject to judicial review, and specific to that case, it ordered the EEOC to go back to the conciliation drawing board before litigating. According to the EEOC in CRST, the Mach Mining case created a sea change to the EEOC’s duty to investigate and conciliate claims prior to suit, excusing the EEOC from its investigation and conciliation failures in CRST. Not so, said the CRST trial court, because Mach Mining does not even apply here. According to the trial court, Mach Mining addressed the sufficiency of the EEOC’s investigation and conciliation, while the EEOC performed absolutely no investigation or conciliation on the individuals’ claims in CRST. Despite the EEOC’s attempts to use its loss in Mach Mining to excuse its failures in CRST, the $4.7 million judgment stands, at least until the Supremes hear the case next year.