The Supreme Court issued its much anticipated opinion in Mach Mining v. Equal Employment Opportunity Commission1 yesterday, unanimously holding that whether the EEOC satisfied its statutory duty to conciliate Title VII charges of discrimination prior to filing suit is an issue subject to judicial review. In so holding, the Court confirmed that failure to conciliate is a viable affirmative defense employers may assert in Title VII suits but placed limits on the steps the EEOC must take to fulfill its conciliation obligation and the scope of that review.

According to the Court, Title VII simply requires the EEOC to (1) notify the employer of the specific conduct that the EEOC concluded harmed an identified person or class (as the EEOC typically does in a determination letter), and (2) “try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.”Courts may review whether the EEOC completed these two requirements, “nothing else,” and, may only look to whether the EEOC “attempted to confer,” not “what happened” during conciliation discussions.The EEOC may normally establish its compliance through a sworn affidavit confirming that it performed its obligations but that such efforts proved unsuccessful.If, however, an employer submits its own affidavit or other credible evidence showing that the EEOC has not complied with its obligations, a court “must conduct a fact-finding necessary to decide that limited dispute.”

On its face, Mach Mining appears to provide employers with a limited victory. Although the Court rejected the EEOC’s assertion that its conciliation efforts are not subject to judicial review, the Court also declined to require courts to conduct a “deep dive into the conciliation process” and determine whether the EEOC attempted to conciliate the charge in good faith—a standard employers hoped would emerge from the case. The Court specifically refers to judicial review of the conciliation process as “relatively barebones,” and, the opinion is replete with language emphasizing the EEOC’s “expansive discretion” over the conciliation process. When conciliating a charge, the EEOC has complete discretion in determining the appropriate method, measures, and strategy, how much time and resources to devote to the process, the kind and amount of communication, and when to end conciliation. Moreover, the Court ruled that the remedy for the EEOC’s failure to conciliate is a stay for the EEOC to comply with its conciliation obligation, not dismissal of the action.

Based on the limits Mach Mining places on the scope of judicial review and the narrow remedy provided to successful employers, conciliation may not be an issue or strategically worth pursuing in many cases. Nevertheless, the Court’s opinion provides employers with a viable option to contest conciliation where the EEOC fails to provide notice of its claim(s) and/or makes no conciliation endeavor at all. And, the EEOC cannot prevail on the defense, as it attempted to do in Mach Mining,by simply directing a court to two “bookend” letters—one which states that the EEOC will be in contact to begin the conciliation process and the other which states that the conciliation attempt has occurred and failed.

Mach Mining also leaves the door open for employers to argue that the EEOC’s attempts at discussion are so lacking or that the EEOC was so obvious in its intent to bypass its conciliation obligation, that no “endeavor” to achieve voluntary compliance was actually made. For instance, in appropriate cases, employers should continue to argue that the EEOC may not, in light of the Court’s opinion,engage in a “take it or leave it” approach to conciliation, especially where the EEOC’s offer is patently unreasonable. Indeed, the court-recognized purpose of conciliation is to “provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” And, as the Court observed, a “discussion” is defined as “an attempt to reconcile different positions.” Employers may argue that a “take it or leave it” approach necessarily involves no discussion or attempt to reconcile the parties’ different positions and, an outrageous demand provides employers with no real opportunity to voluntarily comply.

Employers making such an argument, however, need to distinguish between the EEOC’s efforts to conciliate and the actual conciliation process. Mach Mining makes clear that given Title VII’s non-disclosure requirements, courts may not review statements made or positions taken during conciliation discussions. Accordingly, employers facing the EEOC’s failure to endeavor to engage in a discussion aimed at remedying discrimination should consider taking steps to contemporaneously document the EEOC’s failure in a manner that might later be subject to judicial review. Such a document should not reference the substance of the EEOC’s conciliation proposal but, rather, focus on how the EEOC failed to provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.

Mach Mining provides employers with the ability to raise the failure to conciliate defense where no efforts to conciliate are made. However, how much room employers have to contest the adequacy of the EEOC’s attempts to discuss conciliation and the evidence needed to prevail on such a defense is an issue that will undoubtedly be developed by the lower courts in years to come.