On April 29, 2015, the U.S. Supreme Court decided Mach Mining, LLC v. EEOC, unanimously holding that courts may review whether the Equal Employment Opportunity Commission (EEOC) fulfilled its statutory duty to attempt to conciliate discrimination claims under the Title VII before filing suit.
This decision was a partial victory for employers. Although the Court rejected the EEOC’s longstanding position that pre-suit conciliation efforts are shielded from judicial review, it defined the scope of judicial review narrowly and recognized that the appropriate remedy is an order requiring the EEOC to undertake the mandated conciliation efforts rather than dismissal or other more meaningful relief.
The good news is that courts can no longer simply “accept the EEOC’s say-so that it complied with the law,” and instead must determine whether “the EEOC actually, and not just purportedly, tried to conciliate a discrimination charge.”
The bad news is that this will be a “relatively bare-bones review” with courts simply assessing whether the EEOC has:
(1) Informed the employer about the specific allegation (as the EEOC typically does in a letter announcing its determination of “reasonable cause”) and described both what the employer allegedly has done and which employees (or what class of employees) have allegedly suffered as a result.
(2) Engaged 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. By rejecting the employer’s position that courts should assess whether the EEOC has negotiated in good faith and adhered to a code of conduct, the Court made clear that the EEOC retains expansive discretion under Title VII as to “how to conduct conciliation efforts and when to end them.”
It is too early to tell whether this decision will impose any meaningful restraint on EEOC conciliation practices. What is clear, however, is there is now at least some modicum of accountability and judicial oversight, albeit with narrow review and limited remedies.This decision leaves several key questions unanswered, including whether the EEOC’s separate statutory duty to investigate the merits of a charge is likewise subject to judicial review (and the appropriate remedy if the EEOC fails to do so), whether the EEOC’s duties differ depending on whether future (injunction) or past (monetary damages) relief is sought, and the nature and extent of discovery permitted on the EEOC’s conciliation or investigative efforts.