Supreme Court Confirms EEOC Conciliation Efforts Are Subject To Judicial Review

On April 29, 2015, in a unanimous decision, the U.S. Supreme Court resolved a circuit split in holding that the Equal Employment Opportunity Commission's (EEOC) attempts to conciliate a discrimination charge prior to filing a lawsuit are judicially reviewable. In Mach Mining, LLC v. EEOC,1 the Supreme Court vacated a decision by the U.S. Court of Appeals for the Seventh Circuit that had held the EEOC's conciliation effort during the administrative charge process was not judicially reviewable and not an affirmative defense to be used against the agency.2 Although Title VII provides the EEOC with "wide latitude" to choose which informal conciliation methods to employ, the Supreme Court found the statute also provides "concrete standards" for what the conciliation process must entail.

Specifically, the Court held that, to comply with its statutory conciliation obligations, the EEOC must inform the employer about the specific discrimination allegation(s) and such notice must describe what the employer has done and which employees (or class of employees) have suffered. The Court further held the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. However, while the Court held that judicial review of these requirements is appropriate, the scope of that judicial review is "narrow." A court will merely conduct a "barebones review" of the conciliation process and the EEOC will have "expansive discretion" to decide "how to conduct conciliation efforts" and "when to end them."

Significantly, a court is not to examine positions taken by the agency during the conciliation process. The Court noted that while a sworn affidavit from the EEOC stating that it has performed these obligations would generally suffice to show that it has met the conciliation requirement, where an employer presents concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a reviewing court will be tasked with conducting "the fact-finding necessary to resolve that limited dispute." Ultimately, the Court held, where a court finds for an employer on the issue of the EEOC's failure to conciliate, the appropriate remedy is to order the EEOC to undertake the mandated conciliation efforts. While some courts in the past have imposed the remedy of dismissal of a lawsuit based on failing to meet its...