Death and taxes are not the only things that are inevitable—so are employers looking bad in Supreme Court employment cases. But in CRST Van Expedited v. EEOCthe agency tasked with defending employees who are victims of unlawful employment discrimination looks bad—for not following the rules.

Title VII allows prevailing employers in frivolous Title VII employment discrimination lawsuits to collect a reasonable attorney’s fee. The Equal Employment Opportunity Commission (EEOC) brings lawsuits on behalf of aggrieved employees. But before doing so it has a statutory obligation to investigate, find reasonable cause the employer violated Title VII, and conciliate the dispute.

On Monday the Supreme Court heard oral argument in CRST Van Expedited v. EEOC where it will decide whether an employer is a prevailing party where a court dismissed a Title VII case because the EEOC failed to meet its pre-lawsuit obligations.

The EEOC brought a class action hostile work environment case against CRST Van Expedited involving about 270 women. The Eighth Circuit dismissed most of the claims including those of 67 women the EEOC failed to investigate, find cause, or conciliate.

The district court awarded CRST over $4.5 million in attorney’s fees and costs. The EEOC objected claiming that CRST wasn’t a prevailing party with respect to these claims because in dismissing them the court made no ruling on the merits.

According to the Eighth Circuit to be a ruling on the merits the pre-lawsuit obligations the EEOC failed to meet would have to be elements of the hostile work environment sexual harassment lawsuit as opposed to “nonjurisdicational precondition[s] to filing suit.”

The Eighth Circuit concluded that EEOC’s pre-suit obligations weren’t elements of the lawsuit. Finding reasonable cause and attempting conciliation are required before the EEOC files any lawsuit, not just sexual harassment lawsuits; the Eighth Circuit had never labeled these requirements as “elements” of a Title VII claim; and pre-suit obligations don’t distinguish between employers who have violated Title VII and those who have not.

Ross Runkel, SCOTUSblog reports following oral argument that it “seems clear that there is no support on the Court for the Eighth Circuit’s ‘on the merits’ rule. The Justices’ questions and comments suggest that they will prefer a bright-line rule – either that (1) [an employer] prevails by winning in any fashion or (2) [an employer] must gain a dismissal with prejudice [meaning the case cannot be brought again].” 

State and local governments may be sued under Title VII. An amicus brief filed by the Equal Employment Advisory Council noted that the EEOC in recent years has embarked on an enforcement strategy that “places particular emphasis on class-based systemic and pattern-or-practice discrimination litigation.” EEAC argues that this policy “incentivize staff to bypass investigation and pre-suit conciliation in favor of high-profile, class-based lawsuits that are likely to end, as this one did, in dismissal.”