Before suing an employer for discrimination, the Equal Employment Opportunity Commission (“EEOC”) must try to remedy unlawful workplace practices through informal methods of conciliation. The EEOC sued Mach Mining in federal court alleging sex discrimination in hiring, and Mach Mining asserted that the EEOC had failed to conciliate in good faith prior to filing suit. At summary judgment, the EEOC argued that its conciliation efforts are not subject to judicial review. The District Court rejected that argument, but the Seventh Circuit reversed. The Court vacated and remanded, holding that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit, but the scope of that review is narrow, reflecting the abundant discretion the law gives the EEOC to decide the kind and extent of discussions appropriate in a given case. Mach Mining, LLC, v. EEOC, 575 U.S. ____ (2015).

Title VII sets out a detailed, multi-step process through which the (EEOC) is empowered to enforce Title VII’s discrimination prohibitions. After investigating charges, if the EEOC finds reasonable cause that a violation occurred, the statute requires the EEOC to “conciliate.” In other words, before filing suit, the EEOC must try to obtain voluntary compliance to resolve the claim. Like other settlement conferences, Title VII prohibits anything said or done during conciliation from being used as evidence in a subsequent proceeding, absent written evidence of the parties concerned. See §2000e–5(b).

After investigating a sex discrimination charge against Mach Mining and determining that reasonable cause existed to believe that the employer had engaged in unlawful hiring practices, the EEOC sent a letter to the employer and the complainant, inviting them to participate in informal conciliation and notifying them that an EEOC representative would be contacting them to begin the process. About a year later, the EEOC sent Mach Mining another letter stating that it had determined that conciliation efforts had been unsuccessful. The record was silent on anything that happened between the two letters, or the details of the alleged conciliation process. The EEOC then filed suit against Mach Mining in federal court. In its answer, Mach Mining alleged that the EEOC had not in fact attempted to conciliate in good faith. The EEOC countered that its conciliation efforts were not subject to judicial review, evidenced in part by the fact that Title VII provides no standards by which to judge the EEOC’s performance of its statutory duty to conciliate. Regardless, the EEOC argued, the two letters it sent to Mach Mining were sufficient proof that it had fulfilled its statutory duty.

The Supreme Court unanimously held that a lower court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit, although the scope of that review is narrow. Though Title VII afforded to the EEOC wide latitude over the conciliation process, the Court explained, not everything was left to the EEOC. For example, Title VII offers at least some standard of review, in that the EEOC must “endeavor” to some extent to conciliate a claim; a lawsuit filed without any attempt to conciliate would fail to satisfy one of the law’s necessary conditions of litigation. Further, the law provides specified methods pertaining to what the “endeavor” must entail: conference, conciliation, and persuasion. See §2000e–5(b). These methods “necessarily involve communication between parties, including the exchange of information and views.” Thus, Title VII has provided courts with a manageable standard to review the EEOC’s efforts: In order for the EEOC to meet its statutory duty, it must at least (1) tell the employer about the claim (i.e. which practice has harmed which person or class), and (2) provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance with Title VII.

However, the Court noted, a court’s review is very limited. Courts are permitted only to review whether the EEOC afforded the employer a chance to discuss and rectify a specified discriminatory practice. Permitting this limited review, in the Court’s opinion, “respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the [EEOC] followed the law.” The Court explained that the EEOC need only “endeavor” to conciliate a claim, but a set amount of time or resources was not required, nor were any specific steps or measures. And of course, the EEOC retains discretion as to whether to make an agreement with the employer or file suit.

The Court held that the EEOC’s two letters, which indicated only that the process would start soon, and later that the process was finished, did not prove that the EEOC actually tried to conciliate. The EEOC’s “bookend” letters were insufficient to actually verify the EEOC’s attempt to conciliate. Though the EEOC may establish it satisfied its statutory obligation to conciliate through a sworn affidavit from the EEOC, if an employer provides credible evidence (in the form of an affidavit or otherwise) to the opposite, then the court must conduct the fact-finding necessary to decide that limited dispute. If, upon judicial review, a court finds that the EEOC failed to attempt to conciliate, then it must order the EEOC to undertake the mandated efforts to obtain the employer’s voluntary compliance with the law.

This case is a victory for employers on two fronts: it allows judicial review of the EEOC’s conciliation efforts, and confirms what efforts are required. However, much discretion still remains with the EEOC with regard to the extent to which conciliation efforts are “sufficient,” and how the EEOC will enforce this requirement.

If you would like to further discuss the implications of Mach Mining or have any questions regarding EEO compliance, please contact your Dorsey lawyer.