The United States Supreme Court has unanimously held in Mach Mining, LLC v. EEOC that courts can review conciliation efforts by the Equal Employment Opportunity Commission (EEOC) before the agency sues an employer.  

The decision, handed down in late April, means that courts can review whether, before filing a lawsuit, the EEOC met the prerequisites of:

  • Notifying the employer about the alleged workplace discrimination
  • Describing the alleged harm suffered by the employee(s) 
  • Engaging in discussion with and providing the employer a chance to remedy the situation.  

Title VII of the 1964 Civil Rights Act  requires the EEOC to engage in “informal methods of conference, conciliation, and persuasion” with the employer.  Only when the EEOC “determines that conciliation has failed” can it file suit in federal court.   

In Mach Mining, although the EEOC had initially sent a letter inviting the employer and complainant to participate in informal conciliation and notifying them that a representative would be in touch, no discussion or conciliation was ever scheduled.  The next year, the EEOC sent the employer another letter determining that conciliation efforts had been unsuccessful; then the agency filed suit in federal court. Mach Mining alleged that the EEOC had not attempted to conciliate in good faith by sending only two letters to the employer without ever engaging in discussion or conciliation. 

The Supreme Court agreed.  Even though the EEOC has broad authority to choose “informal methods” of conciliation, the Court admonished that “no, Congress has not left everything to the Commission.” Reversing the Seventh Circuit, the Supreme Court held that courts have narrow authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation with employers before litigation. 

A sworn affidavit from the EEOC stating that it has performed these obligations can show that it has met its conciliation obligation. However, an employer can submit a counter-affidavit to show that the EEOC has failed to do so, thereby inviting judicial review.

Should a court find in favor for the employer on this narrow issue, the remedy would be to order the EEOC to undertake the mandated conciliation efforts.   Nonetheless, the employer can benefit from this window of opportunity to engage in conciliation and potentially settle the matter without the risk of litigation or adverse publicity. 

In California, of the some 19,000 annual dual-filed employment discrimination complaints before the EEOC and the California Department of Fair Employment and Housing (DFEH), three-quarters are usually handled by the DFEH.  Under 2012 revisions to California’s Fair Employment and Housing Act (FEHA), before the DFEH can file suit on any meritorious complaint, the Department must first provide free mediation services by attorney-mediators in its Dispute Resolution Division.  As a result of this innovation, DFEH settlement numbers and values have grown, doubling from under $3 million to over $6 million annually in two years.  At the same time, alleged violations are remedied in a timely and cost effective manner, without adverse publicity and the high costs of litigation. 

Given the new scrutiny on agency conciliation efforts, employers should:

  1. Respond to and engage with the EEOC in response to a discrimination claim
  2. Ensure that the EEOC describe the alleged discrimination and identify the alleged harm suffered by the employee(s)
  3. Demand that the EEOC engage in good faith discussion and conciliation to try to resolve the matter before the agency files suit
  4. Maintain a thorough record of discussion or conciliation attempts that can form an affidavit should the process be contested later
  5. In the event that discussion and conciliation do not occur before filing suit, ask the court to review EEOC’s required prerequisite to engage in good faith conciliation 
  6. If a California employment complaint is handled by the DFEH, use that agency’s comprehensive dispute resolution services early and often.