Under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Equal Employment Opportunity Commission (“EEOC”) is obligated to investigate charges of discrimination and retaliation in the workplace filed by a “person claiming to be aggrieved.”  If the EEOC finds “reasonable cause” to believe that the allegations have merit, it must attempt to resolve the matter before filing a lawsuit on behalf of the complainant by “informal methods of conference, conciliation, and persuasion.”  The statute does not describe the extent to which the EEOC must engage in conciliation and Title VII is silent as to whether an employer can seek judicial review of whether the EEOC satisfied its statutory obligation in pursuing these informal methods.

Until recently, federal courts routinely ruled that they had no authority to review the EEOC’s conciliation efforts.  In a recent unanimous decision, Mach Mining, LLC v. EEOC, No. 13-1019 (April 29, 2015), the Supreme Court vacated a Seventh Circuit ruling that courts could not review the EEOC’s Title VII-mandated efforts to conciliate with companies accused of discrimination before filing a suit in federal court.  The Supreme Court disagreed with the Seventh Circuit and held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit, [b]ut . . . the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.”

The Court’s ruling sought to strike a balance between the discretion Title VII gives the EEOC and the need to ensure the EEOC follows the law.  Now, the EEOC must inform an employer of the specific allegation against them, and try to engage that employer in some type of written or oral discussion to give them a chance to remedy the allegedly discriminatory practice.

Employers should view the Court’s decision as good news.  First, even though the Court only endorsed “narrow” and “bare-bones” review, the Supreme Court’s ruling makes it clear that the EEOC is not above judicial review.  Second, the Court left the door open for challenges to the sufficiency of the EEOC’s conciliation efforts.  Thus, lawyers representing employers can continue to bring the failure to conciliate defense.  If the employer wins that fight, the court can order the EEOC to undertake the mandated efforts to attempt to secure voluntary compliance.  While employers may prefer a dismissal to a stay, in some cases, a delay in litigation can be advantageous.

Moving forward, employers should be aware of the EEOC’s obligations to conciliate in cases where the EEOC finds reasonable cause to proceed.  Employers should also demand that the EEOC provide information about the claims because this information will allow employers to better assess entering into an early settlement versus moving forward with litigation.  Finally, the employer’s counsel should document any conciliation efforts (or lack thereof) so that, if necessary, the employer can produce evidence that the EEOC failed to provide the requisite information about the charge and/or failed to attempt to engage in a conciliation discussion.