In a unanimous opinion today (available here), the Supreme Court agreed with employer Mach Mining, LLC that the EEOC’s obligation to pursue conciliation before filing suit against an employer is subject to judicial review.  Given the limitations of the Court’s decision, though, it is something of a pyrrhic victory for employers.

The underlying charge at issue was filed with the EEOC by a female job applicant, who alleged that Mach Mining had never hired a woman for a non-office, mining job.  The EEOC investigated, and found reasonable cause to believe that Mach Mining had discriminated against the complainant and a class of women who had also applied for, and been rejected from, mining jobs.  The Commission’s finding of reasonable cause triggered the agency’s obligation to “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  42 U.S.C. § 2000e-5(b).  Though the statute leaves it entirely to the Commission to decide whether to accept a settlement or to instead pursue litigation, the obligation to attempt informal reconciliation is “a necessary precondition to [the EEOC] filing a lawsuit.”  In the case of Mach Mining, the Commission sent a letter announcing its finding of reasonable cause and promising that a representative of the agency would contact Mach Mining to begin the conciliation process.  The record before the Supreme Court does not disclose what happened next between the agency and the employer (thanks to Title VII’s non-disclosure provisions covering the reconciliation process), except that the agency sent Mach Mining a letter a year later asserting that “conciliation efforts…have occurred and have been unsuccessful.”  The EEOC then sued Mach Mining in federal district court.  In its answer to the EEOC’s federal complaint, Mach Mining asserted that the EEOC had failed to conciliate in good faith.  The Commission moved for partial summary judgment on that issue, arguing that its conciliation efforts are not subject to judicial review. The trial court agreed with Mach Mining that it should review the Commission’s efforts; but certified its decision for immediate appeal.  The Court of Appeals for the Seventh Circuit reversed.  The Supreme Court granted certiorari to resolve a circuit split on the issue. 

Though the Court rejected the EEOC’s position that Title VII “provides no standards by which to judge” the EEOC’s performance of its statutory duty, and therefore, judicial review was both impossible and impermissible, it also rejected Mach Mining’s position that Title VII not only permits judicial review, but also requires that the Court evaluate whether the Commission negotiated in good faith, borrowing standards from the process set forth in the National Labor Relations Act.  The Court held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit,” but found “that the scope of that review is narrow” in deference to “the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” 

Compliance with the new standard is fairly easy for the EEOC, under the Court’s guidance: “A sworn affidavit from the EEOC stating that it has performed the obligations…but that its efforts have failed will usually suffice to show that it has met the conciliation requirement.”  If the employer submits credible evidence to the contrary, disputing either that the EEOC provided the required information informing the employer about the charge or whether the EEOC actually engaged in discussions to conciliate the claim, “ a court must conduct the factfinding necessary to decide that limited dispute.”  If the Court finds in favor of the employer, it must simply order the EEOC to engage in the conciliation process.

Thanks to today’s decision, employers now have a new, if limited tool, in their arsenal for negotiating with the EEOC over conciliation efforts.