Yesterday evening the U.S. Equal Employment Opportunity Commission filed its Reply Brief with the U.S. Supreme Court in Mach Mining v. EEOC, Case No. 13-1019. It draws the battle lines for the upcoming oral argument before the SCOTUS in January of 2015. Given the importance of this case and the issue presented, the Commission’s pleading is well worth a read.

The Context

Mach Mining v. EEOC is a big case for employers and for government enforcement litigation. In a game-changing decision in December 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit brought by the EEOC. That decision had far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes – “pay millions or we will sue and announce it in a media release – prior to suing employers.

We have blogged on this case at various points before, as the litigation winded through the lower courts and culminated in the precedent-setting decision of the Seventh Circuit reported at 738 F.3d 171 (7th Cir. 2013). Readers can find the previous posts here and here.  In essence, the Seventh Circuit determined that the EEOC’s pre-lawsuit conduct in the context of conciliation activities cannot be judicially reviewed.

Grant Of Certiorari

Subsequently, in what many SCOTUS watchers found ironic, even the though the EEOC prevailed in the Seventh Circuit, the Government also backed Mach Mining’s request for SCOTUS review to resolve the disagreement among the courts of appeals regarding the EEOC’s conciliation obligations.

Given the stakes, the SCOTUS accepted Mach Mining’s petition for certiorari in short order to resolve this issue.

Amicus Briefs For The Defense

Employer groups have lined up behind Mach Mining to support reversal of the Seventh Circuit’s decision. Seyfarth Shaw LLP submitted an amicus brief to the U.S. Supreme Court on behalf of the American Insurance Association in Mach Mining. For our loyal blog readers interested in our amicus brief, a copy is here.

The EEOC’s Brief

The Commission’s submission to the Supreme Court last night asserts that federal judges cannot adjudicate any issue relative to the EEOC’s conciliation efforts. It relies heavily on the statutory language of Title VII, and argues that Congress left it to the Commission “to decide which informal methods of conference, conciliation, and persuasion would be appropriate.” EEOC Reply Brief at 8. Given that that Congress entrusted the Commission exclusive authority of whether to enter into pre-lawsuit settlements, this demonstrates that the process “is committed to the agency’s discretion” and further any such settlements – by way of a conciliation agreement – are confidential and cannot be made public. Id. at 9. Hence, the EEOC contends, this process is fundamentally “incompatible with judicial review of the conciliation process.” Id.

Not surprisingly, the EEOC also argues that judicial review of the adequacy of the Commission’s conciliation efforts “undermines the effective enforcement of Title VII.” Id. at 11. It asserts that employers have used the defense as a potent weapon to fight EEOC litigation through discovery and delay. Id. The EEOC contends that allowing for judicial review of its conciliation efforts would mean that employers would exploit it for litigation advantage, “stockpiling exhibits for the coming court battle.”  Id. at 40.

Next, in reciting legislative history for Title VII to support its view that the adequacy of its conciliation should not be reviewed, the EEOC relies on “basic principles of administrative law” to conclude that because conciliation failure is not final agency action, it is committed to the agency’s discretion.  Id. at 32-33.

Finally, and not unexpectedly, the EEOC contends that judicial review is unnecessary, as it has “powerful incentives” to conciliate in good faith and “has a long history of doing so.” Id.