Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., requires that the Equal Employment Opportunity Commission (“EEOC”) engage in informal conciliation efforts after it finds reasonable cause to support a charge of discrimination, but before it files suit. 42 U.S.C. §2000e – 5(b). The EEOC can bring suit against an employer only after the Commission has attempted, in good-faith, to secure from the employer a conciliation agreement acceptable to the Commission. See 42 U.S.C. §2000e – 5(f)(1). This “good-faith” requirement is critical to the conciliation process because it is the statutory precondition the Commission must follow before it may initiate a lawsuit against an employer. Over the past several years, however, it has become unclear exactly when the Commission has made this “good-faith” attempt. This point of contention has been litigated among the federal circuits with very mixed results, including whether the judiciary even had the authority to “measure” the Commission’s conciliation attempts. Three weeks ago, the Supreme Court of the United States clarified this area of law by holding that the courts have the authority to review and enforce the EEOC’s conciliation obligation, but that courts should not delve deeply into the process. Mach Mining v. Equal Employment Opportunity Commission, No. 13-1019, 575 U.S. ___ (Apr. 29, 2015)
 
Mach Mining began with a charge of sex discrimination brought against Mach Mining for an alleged failure to hire. After the EEOC investigated and found probable cause to support the charge, the Commission invited both the company and the complainant to conciliate the dispute. A year later, the EEOC announced via letter that conciliation efforts had failed and brought suit against Mach Mining. In response, Mach Mining asserted the EEOC failed to conciliate in good faith. The District Court agreed and determined that it should review whether the Commission had made “a sincere and reasonable effort to negotiate.” Slip op, at 3. The District Court permitted an immediate appeal of this ruling and the Seventh Circuit Court of Appeals reversed, holding that the EEOC’s conciliation effort is “not subject to judicial review.” 738 F.3d 171, 177 (7th Cir. 2013). The Seventh Circuit’s reasoning was that the conciliation requirement was entrusted “solely to the EEOC’s expert judgment” and that judicial review of conciliation would “undermine enforcement of Title VII” by adding further complications to suits brought by the EEOC. Id. at 174, 178-79.
 
Prior to the Seventh Circuit’s decision in Mach Mining, every other court of appeal that had considered the issue had held that judicial review of the EEOC’s conciliation efforts was appropriate – though the standard of review differed. Some relied on a highly deferential standard, see, e.g., EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1102 (6^th Cir. 1984), while others would qualitatively evaluate the EEOC’s conciliation efforts. See, e.g., EEOC v. Asplundh Tree Expert Company, 340 F.3d 1256, 1259 (11^th Cir. 2003). The decision in Mach Mining reverses the Seventh Circuit by finding that judicial review is appropriate, but sets a low bar for the EEOC to meet.
 
The Supreme Court recognized that Title VII requires the EEOC to conciliate prior to filing a lawsuit. It also explained that historical case law imputes a “strong presumption favoring judicial review of administrative action.” Slip op, at 8. Because there is judicial review for other compulsory prerequisites to filing suit under Title VII, the Court explained the doctrine of judicial review was also supported in this context.         
           
In defining the proper scope of judicial review of the EEOC’s conciliation activities, the Court rejected the EEOC’s proposal that facial examination of the EEOC’s statements is enough. In striking a balance between the opposing views, however, it also stopped far short of mandating intrusive review. The Court held that the scope of judicial review must enforce the statute’s requirements, “that the EEOC afford the employer a chance to discuss and rectify specified discriminatory practice – but goes no further.” Id. The Court explained that the judiciary is not bound to merely accept the EEOC’s say-so that it complied with the law, but also cautioned against a detailed review, which could run afoul of Title VII’s mandates that conciliation efforts remain confidential, and noted that the Commission’s strategic conciliation decisions should not be second-guessed by the courts. The Court provided that the EEOC must inform the employer about the specific allegations and “must try to engage employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.” Slip op, at 13. If the Commission does not provide an employer with an opportunity to discuss the charge and how it could better comply with the law, it has not satisfied its statutory obligations. But, judicial review is simply limited to that. 
 
The Court indicated that the EEOC should be able to meet its good-faith conciliation obligation with a sworn affidavit. If an employer provides credible evidence of its own that the EEOC did not meet this standard, a “court must conduct the fact finding necessary to decide that limited dispute.” Slip op, at 14. Should the employer be successful in its argument, “the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.” Id. Presumably, if and when those efforts fail, the case proceeds.
 
The takeaway from Mach Mining is simply this: the EEOC’s conciliation efforts are subject to a judicial review, but such limited review as to be nearly useless. The EEOC will very quickly prepare a form affidavit that it will submit with each new case it files (if it hasn’t already) that will meet the Supreme Court’s requirements. Additionally, the remedy available to an employer where it can establish the EEOC failed to meet its obligation is minimal. It merely stays proceedings for long enough to begin conciliation process. 
 
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