On April 29, 2015, reversing a Seventh Circuit decision in Mach Mining, LLC v. Equal Employment Opportunity Commission (“EEOC”), the U.S. Supreme Court held that courts have the authority to review, to a limited degree, EEOC compliance with Title VII’s statutory requirement that the agency first attempt informal conciliation before bringing suit against employers for alleged discrimination.

The Mach Mining Court reasoned that compulsory prerequisites to filing suit are routinely enforced by courts and, Title VII, by its own terms, provides judicially manageable criteria for review. As a result, judges can ensure the EEOC has, at a minimum, (1) notified the employer of the claim, describing what the employer has done and which employees have suffered and (2) given the employer an opportunity to discuss the matter and achieve voluntary compliance by remedying the allegedly discriminatory practice, before filing suit.

In reaching this result, the Court seems to have chosen a middle path between the proposals of the respective parties. By its holding, the Court necessarily rejected the EEOC’s contention that its conciliation efforts should not be subject to judicial review of any kind. However, emphasizing the “expansive discretion” given to the EEOC in deciding how and to what extent to conduct informal conciliation, the Court also refused to adopt Mach Mining’s view that the mandate to conciliate encompasses a duty to negotiate in good faith that courts can construe as imposing additional procedural requirements on the EEOC.

For example, the Court eschewed the idea that the EEOC must communicate the factual or legal bases underlying its positions or calculations. An obligation to engage in a back-and-forth negotiation process with employers, reviewing and responding to counter-offers, and allotting time for employers to do the same, was similarly rejected. Thus, the Commission’s broad discretion over the strategy utilized in its conciliation efforts remains intact and unreviewable.

While the Mach Mining decision certainly indicates that statutorily-mandated EEOC conciliation isn’t a judicially untouchable wild west, employers shouldn’t read much more into the decision. In fact, it’s impossible to view the opinion as intending to effectuate significant (or even insignificant) changes to what has been typically required of the agency in the past as a procedural matter – as long as the EEOC has “endeavored” to conciliate a claim, through whatever “informal” means it deems appropriate, and is unable to secure acceptable terms by its own standards, a discrimination lawsuit is still fair game.

In sum, it’s a low bar, reviewable only with respect to the very minimal requirements of some form of notice and opportunity to remedy. Even so, the decision carries symbolic value in its unmistakable signal to the EEOC that the wide latitude otherwise granted to the agency does not give it the authority to place itself above the law.

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