Decision: In Mach Mining, LLC v. Equal Employment Opportunity Commission, the US Supreme Court confirmed that courts have a duty to review whether the Equal Employment Opportunity Commission (EEOC) has fulfilled its obligation to attempt conciliation. However, the Court held that the scope of the review is narrow, focusing solely on whether the EEOC complied with its statutory obligation without probing deeply into the substance of the conciliation efforts. The EEOC sued petitioner Mach Mining, LLC, for sex discrimination in hiring. Mach Mining raised as an affirmative defense that the EEOC had failed to fulfill in good faith its statutory obligation to conciliate before filing the lawsuit.

The Supreme Court held that in order to meet the conciliation requirement of Title VII of the Civil Rights Act of 1964 the EEOC must inform the employer about the substance of the claim—including the individuals or class of individuals who have allegedly been discriminated against—and provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. The Court observed that a sworn affidavit from the EEOC stating that it has discharged these obligations is likely to suffice in most cases. But, if the employer provides credible evidence to the contrary, “a court must conduct the factfinding necessary to decide that limited dispute.” Should a court find in favor of the employer, it should stay the case and order the EEOC to undertake the mandated conciliation efforts.

Impact: This decision confirms for employers that the target of an EEOC discrimination suit may insist on receiving information about the claim during the conciliation process and, if the EEOC refuses, may raise the EEOC’s failure to conciliate as an affirmative defense. However, employers should keep in mind that the EEOC maintains extensive discretion to determine the kind and amount of communication that is appropriate in any given case and that the affirmative defense generally will not result in a substantive employer win but rather in sending the case back to the conciliation process.