In Mach Mining, LLC v. EEOC, the United States Supreme Court held that the conciliation efforts of the Equal Employment Opportunity Commission (EEOC) are subject to judicial review, although such review is limited to ensure that the EEOC has satisfied its statutory obligation to provide an employer the opportunity to discuss the dispute in an effort to achieve voluntary compliance.

Mach Mining arose from a charge that the employer failed to hire a coal miner on account of the female applicant’s sex. The EEOC investigated the charge and determined that reasonable cause existed to believe that unlawful discrimination occurred. The EEOC then notified Mach Mining by letter of its finding, and promised that an EEOC representative would “contact [Mach Mining] to begin the conciliation process.” There was no evidence that any such contact or conciliation efforts occurred. About a year later, the EEOC sent Mach Mining a second letter, informing the company that “conciliation efforts as are required by law have occurred and have been unsuccessful.” The EEOC then filed a sex discrimination lawsuit against Mach Mining. Mach Mining asserted in its answer to the EEOC’s complaint that the EEOC failed to conciliate in good faith prior to filing suit, and the EEOC asked the court to determine that its conciliation efforts are not subject to judicial review.

The trial court initially determined that it should review whether the EEOC’s efforts at conciliation were “sincere and reasonable,” but on appeal, a Court of Appeals determined that the EEOC’s conciliation efforts are not subject to any judicial review. The United States Supreme Court granted review and held that judicial review of the EEOC’s conciliation efforts — a statutory prerequisite to filing a discrimination lawsuit — was necessary to ensure that the EEOC fulfilled its obligation to “provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” However, to respect the discretion of the EEOC in such conciliation efforts and the confidentiality of the process, the Court further determined that the scope of the review must be limited to confirming that the EEOC provided the employer with notice of the alleged improprieties and attempted to engage in discussion (oral or written) to allow the employer a chance to remedy the alleged discriminatory practice. Conversely, the adequacy of the conciliation efforts are not be subject to judicial review.

The Court explained that a sworn affidavit from the EEOC that it has performed its conciliation obligations would normally suffice to establish EEOC compliance. However, should the employer present credible evidence that the EEOC failed to provide the requisite information about the claim or did not attempt to engage in a conciliation discussion, a trial court must conduct fact-finding to decide that limited dispute. And if the trial court finds in favor of the employer, the EEOC should be ordered to engage in appropriate conciliation efforts.

The Court found that the EEOC letters in the Mach Mining case — which established only that the EEOC informed the employer that the conciliation process would begin soon and that the process concluded — were not sufficient to satisfy the EEOC’s obligation, and remanded the case for further proceedings consistent with its opinion.