On April 29, 2015, the Supreme Court of the United States decided whether—and the extent to which—courts may review efforts made by the U.S. Equal Employment Opportunity Commission (EEOC) to resolve discrimination claims with an employer before filing suit. The Court decided that courts may review whether the EEOC has fulfilled its mandatory statutory duty to attempt to conciliate discrimination claims before litigation. The scope of this review, however, must be narrow, the Court held. According to Justice Kagan, writing for a unanimous Court, courts may enforce only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. In the matter at hand, the Court refused to adopt the government’s suggestion that judicial review of the EEOC’s conciliation efforts be limited to a check of the facial validity of the two letters that the agency had sent to the employer. According to the Supreme Court, this standard of review “falls short of Title VII’s demands” and “would merely accept the EEOC’s word that it followed the law, whereas the aim of judicial review is to verify that the EEOC actually tried to conciliate a discrimination charge.” Mach Mining, LLC v. Equal Employment Opportunity Commission, No. 13-10-19, Supreme Court of the United States (April 29, 2015).

The Underlying Case

The dispute stems from a 2008 discrimination charge filed with the EEOC against an employer. The EEOC investigated the charge and determined that there was reasonable cause to believe that discrimination had occurred. The EEOC then sent the employer two letters: (1) In 2010, the EEOC notified the employer that it intended to begin informal conciliation. The parties discussed a possible resolution, but were not able to reach an agreement. (2) In 2011, the EEOC informed the employer that it had determined that the conciliation process had been unsuccessful and that further conciliation efforts would be futile.

The EEOC sued the employer, which asserted as an affirmative defense that the EEOC had failed to conciliate in good faith based on section 2000e-5(b) of Title VII of the Civil Rights Act of 1964. The EEOC moved for summary judgment arguing that its conciliation efforts were not subject to judicial review. The district court denied the EEOC’s motion for summary judgment and ruled that courts should evaluate conciliation to “determine whether the EEOC made a sincere and reasonable effort to negotiate.” The Seventh Circuit Court of Appeals reversed the lower court’s denial of summary judgment on the affirmative defense. The court ruled that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.

The Circuit Spread

The Seventh Circuit was the first circuit to have explicitly rejected the affirmative defense of failure to conciliate. The federal appellate court disagreed with its “colleagues in other circuits” and held that Title VII’s “directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.” The Second, Fifth, and Eleventh Circuits evaluate conciliation under a searching three-part inquiry; the Fourth, Sixth, and Tenth Circuits require that the EEOC’s efforts at conciliation “meet a minimal level of good faith.”

In June of 2014, the Supreme Court agreed to hear the case.

Title VII’s Requirements: Section 2000e-5(b)

Section 2000e-5(b) of Title VII requires the EEOC to try to negotiate an end to an employer’s unlawful employment practices before seeking a judicial remedy. The statute states,

the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.

Title VII also imposes a confidentiality obligation on the parties:

Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.

Finally, section 5(f)(1) permits the EEOC to decide to file suit at the end of the informal conciliation process:

If . . . the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action . . .

The Supreme Court’s Decision

The Court decided two issues. The first was whether courts may review the EEOC’s conciliation efforts. The government has argued that the EEOC’s conciliation efforts were not subject to judicial review. Employers argued that the EEOC’s failure to conciliate provides them with an affirmative defense to the merits of a discrimination suit. The Court, disagreed with the government’s reliance on the “broad leeway” that Title VII gives the EEOC “to decide how to engage in, and when to give up on, conciliation.”

Instead, the Court noted that,

Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts’ authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims.

Finding that “Congress has not left everything to the Commission,” the justices ruled that courts may review the EEOC’s conciliation efforts. In summary, the Court ruled that, to comply with Title VII,

  • the EEOC must inform the employer about the specific discrimination allegation;
  • this notice must describe the claim—specifically, what the employer has allegedly done and which employees (or class of employees) have suffered; and
  • the EEOC must try to engage the employer in a discussion in an effort to achieve voluntary compliance and to give the employer a chance to remedy the allegedly discriminatory practice.

The second issue before the Court concerned the scope of judicial review. The government had argued that “courts rely solely on facial examination of certain EEOC documents.” Employers argued that judicial review of EEOC conciliation efforts should be patterned after judicial review of bargaining between employers and unions. The Court rejected both the government’s “most minimalist form of review imaginable” and employers’ “deep dive into the conciliation process” in favor of “the proper scope of judicial review,” which “matches the terms of Title VII’s conciliation provision.”

Accordingly, courts may review whether the EEOC has fulfilled its Title VII obligations (as outlined above). The Court found that the EEOC can show that it has met the conciliation requirement, with a sworn affidavit stating that it has performed its Title VII conciliation obligations but that its efforts have failed. If an employer calls the EEOC’s efforts into doubt, courts have the limited authority to decide that dispute:

If, however, the employer provides credible evidence of its own, in the form of an affidavit or otherwise, indicating that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to decide that limited dispute.

Moreover, the Court found that if a court rules in the employer’s favor, “the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.”

Practical Impact

According to R. Lance Witcher, a shareholder in the St. Louis office of Ogletree Deakins, who represented Mach Mining in this case, “The Supreme Court’s decision, while not going as far as some may have liked, is a positive one for two reasons: (1) it establishes judicial review of the EEOC’s conciliation efforts; and (2) it provides employers with an avenue to challenge the sufficiency of the EEOC’s pre-litigation efforts. Going forward, employers with ‘credible evidence’ that the EEOC did not fulfill its obligations under Title VII—to fully notify the employer of any allegations against it and to engage in discussions aimed at conciliation—may rest assured that courts can resolve such disputes.”

Hera S. Arsen, Ph.D. is managing editor of firm publications and is based in the Torrance, California office of Ogletree Deakins.


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