In a much watched case, the Supreme Court heard argument to determine the appropriate standard of review to apply to the question of whether the EEOC fulfilled Title VII’s requirement that it conciliate claims before it brings suit.
The Justices of the Supreme Court are currently considering whether, and to what extent, courts should review the EEOC’s conciliation efforts that are mandated under Title VII. The Seventh Circuit had previously ruled that the precondition to conciliate is subject to no judicial review at all. The Supreme Court granted a request to review that decision on June 30, 2014.
The Court’s decision will be an important one, as it will determine how an employer can defend against EEOC suits by arguing that the agency failed to properly conciliate the matter. Right now, in the Seventh Circuit (covering Illinois, Wisconsin, and Indiana) where this case originated, employers cannot bring the defense at all. To the extent the Court’s decision establishes a standard of review, it will bring nationwide certainty to the employer’s defense in the matter.
Nevertheless, any standard that is put forth by the Court will be untested, and employers who are ultimately sued by the EEOC will need to work with counsel to determine a proper strategy for its defense.