United States: U.S. Supreme Court Unanimously Rules That Courts Have A Narrow Scope To Review Whether The EEOC Complied With Its Statutory Duty To Conciliate Before Filing Suit

The United States Supreme Court has announced its decision in the closely watched Mach Mining LLC v. Equal Employment Opportunity Commission case – and it was unanimous. In an opinion authored by Justice Elena Kagen that resolved a circuit court split, the Court rejected the EEOC's position that it had carte blanche to determine whether the agency satisfied its statutory duty to attempt conciliation of employment discrimination claims before launching a lawsuit. The Court also rejected the position asserted by the employer, Mach Mining, which the Court described as requiring the district courts to "do a deep dive into the conciliation process." Instead, Justice Kagan's opinion recognized a limited right of judicial review of the EEOC's pre-lawsuit conciliation efforts, stating:

We hold that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But we find that the scope of that review is narrow, thus recognizing the EEOC's extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.

The Court soundly rejected both (1) the EEOC's position that the broad discretion Congress gave it to fulfill its conciliation obligation under Title VII allowed for no meaningful standards by which courts could measure compliance, and (2) Mach Mining's position, which the Court found required far too much of the agency, created further procedural requirements, and "flout[ed] Title VII's protection of the confidentiality of conciliation ef¬forts" found in §2000e–5(b) of the statute. The Court adopted a compromise standard that requires the EEOC to submit an affidavit confirming that it performed the following obligations but that its efforts failed:

[T]he EEOC must inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of "reasonable cause.". . . Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage 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. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. . . . [and] allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute's non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken during those discussions.)

While the Court's decision will be disappointing to most employers given the manner in which the EEOC has been exercising its discretion, at least the agency cannot be the sole judge of whether it has ignored its statutory duty to conciliate.

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