In Mach Mining, LLC v. EEOC, the U.S. Supreme Court resolved the issue of whether courts may review conciliation efforts made by the Equal Employment Opportunity Commission (EEOC) prior to filing suit and what standard courts should apply when reviewing this issue. No. 13–1019 (Apr. 29, 2015).

Before the EEOC may file a lawsuit against an employer, federal law requires that the EEOC must first “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U. S. C. §2000e–5(b). Nothing said or done during these conciliation efforts may be used as evidence in a subsequent proceeding “without written consent of the persons concerned.” Id.

In Mach Mining, LLC, the Court reversed the Seventh Circuit’s holding that courts lacked the authority to review whether the EEOC has satisfied its conciliation obligations. As a result, whenever an employer is sued by the EEOC, courts have authority to review whether the EEOC satisfied the statutory prerequisite of endeavoring to resolve the matter through conciliation.

The Court also addressed the scope of judicial review that a Court should apply when reviewing whether the EEOC has met its conciliation obligations. The Court described the level of review as “relatively barebones” and limited to the following three issues:

  1. The EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of “reasonable cause;”
  2. The notice must properly describe both what the employer has done and which employees (or what class of employees) have suffered as a result; and
  3. The EEOC must 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.

If the EEOC meets these conditions, it will have satisfied its conciliation obligations and may proceed with the lawsuit. The Court explained that a sworn affidavit from the EEOC will typically suffice to establish that the conditions were met. When a court determines that the requirements were not met, however, the proper remedy is for the court “to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.”

The Court also explained that this kind of judicial review is consistent with the statute’s non-disclosure provisions concerning what is said or done during conciliation because “a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.”

Takeaway: When the EEOC sues an employer, the employer should review the EEOC’s conciliation efforts to determine whether the EEOC satisfied the statutory prerequisites for the lawsuit. If not, the court may order the EEOC to attempt to conciliate before allowing the lawsuit to proceed.