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The Supreme Court’s decision in Mach Mining, LLC v. EEOC provides for judicial review with respect to the EEOC’s conciliation efforts in claims of unlawful discrimination against an employer. In Mach Mining, the EEOC filed suit against Mach Mining, LLC on the basis of sex discrimination, specifically, with regard to Mach Mining’s hiring practices. After the EEOC determined that reasonable cause existed as to Mach Mining’s unlawful hiring practices, the EEOC sent a letter to Mach Mining inviting the employer to participate in an informal conciliation proceeding with the plaintiff to attempt to rectify the charge. In its letter, the EEOC notified Mach Mining that an EEOC representative would be contacting the respondent in order to begin the informal conciliation process regarding the charge. Roughly a year later, the EEOC sent a second letter to Mach Mining, stating it had determined that conciliation efforts had been unsuccessful.  The EEOC then filed suit in federal court.

In response to the EEOC’s suit, Mach Mining argued, pursuant to Title VII of the Civil Rights Act of 1964, that the EEOC had failed to conciliate in good faith prior to filing suit.  The EEOC moved for summary judgment on that issue, contending that the sufficiency of its conciliation efforts were not subject to judicial review. Additionally, the EEOC emphasized that the two letters it sent to Mach Mining regarding the charge of discrimination amounted to a sufficient attempt to conciliate pursuant to Title VII. In response to the EEOC’s position, Mach Mining sought judicial review of the extent to which the EEOC attempted to conciliate. Ultimately, the trial court agreed with Mach Mining to the extent that the EEOC’s conciliation efforts were, in fact, subject to judicial review.

The EEOC appealed the trial court’s decision to the Seventh Circuit which reversed and found that the EEOC’s conciliation efforts were not subject to judicial review.

After granting certiorari to determine whether, and to what extent, the EEOC’s attempts to conciliate pursuant to Title VII were subject to judicial review, the Supreme Court  reversed the Seventh Circuit’s decision, holding that federal courts do, in fact, have authority to evaluate whether the EEOC met its conciliation requirement as outlined in Title VII. In making this determination, the Court reasoned that because courts customarily enforce various prerequisites to suits in Title VII litigation, such as whether a charge has been timely filed with the EEOC and whether a right-to-sue letter has been properly submitted, courts also have the authority to enforce the prerequisite of conciliation. Therefore, although the EEOC maintains wide discretion with respect to the informal means by which conciliation efforts are achieved, the courts are authorized to employ judicial review of the EEOC’s conciliation efforts in cases involving a charge of unlawful discrimination. This review allows the court to determine whether the EEOC has (1) provided sufficient notice of the charge to the employer, and (2) given the employer an opportunity to sufficiently rectify the charge prior to filing suit.

What Does This Mean for Employers?

As Justice Kagan opined in Mach Mining, Title VII’s conciliation provisions provide flexibility to the EEOC:

The EEOC need only “endeavor” to conciliate a claim, without having to devote a set amount of time or resources to that project. Further, the attempt need not involve any specific steps or measures; rather, the Commission may use in each case whatever “informal” means of “conference, conciliation, and persuasion” it deems appropriate. And the EEOC alone decides whether in the end to make an agreement or resort to litigation.

As such, although there appears to be no bright-line criteria regarding what constitutes a sufficient attempt to conciliate a claim, from the facts of the Mach Mining decision, it appears that all communications between the EEOC and an employer may be considered in a court’s determination.

Should a dispute arise with respect to whether the EEOC has sufficiently attempted to conciliate a claim, Mach Mining suggests that a mere facial examination of documents purporting to be conciliation attempts may not pass muster.  By the same token, a “deep dive” review of the conciliation process would be too overbroad and inconsistent with the purpose of Title VII’s conciliation provisions.  Mach Mining provides employers with a “win,” as the courts now have the authority to review the EEOC’s actions with respect to conciliation efforts.