May 01, 2015

Supreme Court: EEOC's Conciliation Efforts Subject to Limited Review

On April 29, 2015, the U.S. Supreme Court decided Mach Mining, LLC v. EEOC. Under this 9-0 decision, courts may review whether the Equal Employment Opportunity Commission (EEOC) met its obligation to attempt to conciliate claims of unlawful discrimination prior to filing suit. The ruling is significant for employers because it overruled the position of the EEOC and some courts that the EEOC’s conciliation efforts were not  subject to judicial scrutiny. 

Even so, the Supreme Court held that the EEOC must show only two things to pass judicial review. First, the EEOC must inform the employer of the alleged wrongdoing and the harm suffered by the employee. Second, the EEOC must try to engage the employer in a discussion about remedying the allegedly discriminatory practice. An affidavit from the EEOC stating that it has done these two things will usually satisfy this review. 

The employer may present evidence to contest the EEOC’s affidavit. If a court finds the EEOC did not do these two things, the court will order the EEOC to attempt to obtain voluntary compliance from the employer before it can proceed with its lawsuit.

This decision is an important win for employers, particularly in the context of complex employment litigation matters. The EEOC has been criticized in the past for asserting broad systemic and class claims in litigation without first notifying the employer of the true breadth of its anticipated claims, and without seeking to conciliate those claims. On appeal, the EEOC argued that courts could play no role in reviewing whether the EEOC had satisfied its obligation to notify and conciliate claims. The Supreme Court clearly rejected that position. By requiring the EEOC to establish in each case that it has satisfied its obligation to conciliate claims, the Court has given employers and courts some ability to rein in overzealous tactics.

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