Is the EEOC Rushing Your Company to Court? SCOTUS Says Not So Fast

The U. S. Supreme Court unanimously ruled on April 29 that courts can review whether the EEOC has satisfied its obligation under Title VII to conciliate before running to court.  Title VII dictates that when the EEOC believes that an employer has discriminated against its employees, it must attempt to “eliminate such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.”  However, if the EEOC cannot obtain a conciliation agreement that “is acceptable to the Commission,” the EEOC may then bring a lawsuit.  Up to now, there has been some debate as to what the EEOC needs to do to prove that it has cleared the conciliation hurdle before sprinting into litigation.  In one of the most important labor and employment decisions of this term, the Court held that courts have limited authority to review the EEOC’s conciliation efforts, adopting a middle-ground position that “respects the expansive discretion that Title VII gives to the EEOC over the conciliation process, while still ensuring that the Commission follows the lead.” Mach Mining LLC v. EEOC, U.S., No. 13-1019, 4/29/15.


In September 2011, the EEOC sued Mach Mining on behalf of female job applicants who applied to Mach Mining to be coal mine operators, alleging that the company had not hired any female miners since 2006, despite having received applications from highly qualified women. In 2010, the EEOC sent a letter to the company inviting it to participate in informal settlement talks, promising that the Commission would soon contact them to begin the process.  A year later, the EEOC notified Mach Mining that it considered the conciliation process unsuccessful and filed a complaint in district court. Mach Mining argued that the EEOC hadn’t fulfilled its statutory duty to conciliate in good faith. The EEOC responded by moving for summary judgment solely on issue of whether, as a matter of law, an alleged failure to conciliate is an affirmative defense to its suit for unlawful discrimination.

Although the district court denied the EEOC’s motion, it allowed the EEOC to file an interlocutory appeal to the Seventh Circuit. The Seventh Circuit then reversed and held that the EEOC’s conciliation efforts are not reviewable, even though every other federal circuit to consider the issue has disagreed, with many requiring that the agency meet a “good faith” standard.

During the Supreme Court oral argument, Mach Mining argued that the EEOC has enormous incentive to by-pass or cut short the conciliation process for potentially high profile cases, and that review of the conciliation process can occur without greatly impacting settlement discussions. The EEOC countered that there could be no judicial review as it would undermine Title VII’s intent to establish a confidential, informal forum for settlement discussions. Additionally, lower courts could get bogged down in “mini trials” that would delay or avoid resolving the merits of the discrimination claim.

The Court’s Decision

SCOTUS landed somewhere between the two parties’ positions.  Ultimately, “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit,” but it also has to balance the EEOC’s “discretion to determine the kind and amount of communication with an employer appropriate in any given case.”  The Court concluded that the proper scope of review “matches the terms of Title VII’s conciliation provision,” confirming that the EEOC must:

  • Inform the employer about the specific discrimination allegation;
  • Describe what the employer has done—essentially, what practice has harmed which person or class—and which employees (or class of employees) have suffered; and
  • Try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. This “necessarily involve[s] communication between parties, including the exchange of information and views.”

The EEOC can initially meet its burden to prove it conciliated by presenting a sworn affidavit saying it has met its conciliation duties.  But, if an 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,” the court must jump in to conduct factfinding and resolve the dispute.  If the court finds the EEOC has fallen short, it can require the Commission to resume settlement talks, but not dismiss the EEOC’s suit.

What this Means for Employers

The Court did not provide any further guidance as to what “credible evidence” might include and how the factfinding process might occur.  Nevertheless, employers are best served by documenting the conciliation process from the beginning, including when communications occur, what is said and offered by whom, how positions move or change (if at all), and what information is exchanged. Employers should also keep an open mind and not walk away too quickly from the negotiation table.  It will be harder to argue that the EEOC failed to meet its statutory obligations if the employer is the first one to shut the door. And if the EEOC rushes too quickly into court, employers should know that they have a mechanism to push back and possibly protect their company from future litigation.