In another unanimous decision, the Supreme Court held that federal courts may review the sufficiency of the Equal Employment Opportunity Commission’s notice of and opportunity for conciliation afforded an employer under Title VII of the Civil Rights Act. While affirming that courts have a role to play, the Supreme Court ruled that Title VII gives the EEOC discretion on “how to conduct conciliation efforts and when to end them.” Mach Mining, LLC v. Equal Employment Opportunity Commission, No. 13-1019 (Apr. 29, 2015).

Title VII requires the EEOC to endeavor to conciliate a dispute with an employer after it finds reasonable cause to believe discrimination occurred and before the Commission files a lawsuit. In Mach Mining, the employer argued that the EEOC had failed to conciliate in good faith prior to filing the lawsuit; however, the federal appeals court hearing the matter found no basis in Title VII for the court to review the conciliation process.

The Supreme Court rejected the EEOC’s argument that Title VII provided no standards by which a court might evaluate the sufficiency of its conciliation efforts. Emphasizing the importance of conciliation within the scheme of Title VII, the Court said that absent judicial review, “[t]he Commission’s compliance with the law would rest in the Commission’s hands alone.” Nonetheless, the Supreme Court cautioned the reviewing court not to do a “deep dive” into the conciliation process.

According to the Court, an employer is entitled to information that will allow the employer the opportunity to remedy the allegedly discriminatory practice. This includes information on what the employer had done and the persons harmed. If the sufficiency of the conciliation is questioned, a sworn affidavit from the EEOC outlining the performance of its conciliation obligations will typically suffice, the Court wrote. Nonetheless, a court may continue the inquiry beyond an affidavit if the employer provides evidence that the EEOC did not give the employer adequate information or the EEOC did not attempt to engage in a conciliation discussion, the Court said.

For more on this decision, see “Supreme Court Vindicates Courts’ Role in Reviewing EEOC Conciliation Obligations” at www.jacksonlewis.com.

To the extent EEOC conciliation efforts continue to be litigated, most likely this will occur at the beginning of an EEOC lawsuit. Typically, the employer would assert the EEOC did not provide proper notice of the alleged discriminatory conduct or the persons harmed, and therefore the employer was denied an opportunity to conciliate. Addressing this situation, the Court said that if the employer demonstrates insufficient conciliation, “the appropriate remedy is to order the EEOC to undertake the mandated effort to obtain voluntary compliance.”