On April 29, 2015 the US Supreme Court ruled that whether the EEOC failed to conciliate in good faith is reviewable by District Courts. In Mach Mining, LLC v. EEOC, the employer asserted that the EEOC’s two letters – declaring the conciliation process started and concluded – were not sufficient to establish good faith. The District Court agreed, but the 7th Circuit reversed holding that the EEOC’s conciliation obligations were not reviewable.
In vacating the 7th Circuit’s holding, the Supreme Court concluded that where the EEOC makes a “reasonable cause” determination, it must then endeavor to eliminate the alleged unlawful discrimination by informal conciliation before filing a lawsuit. The EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. The Supreme Court reiterated that “a sworn affidavit from the EEOC stating that it has performed the obligations … but that its efforts have failed will usually suffice to show that it has met the conciliation requirement.” However, the employer may challenge the assertion by setting forth that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim. Where such a challenge occurs, the court must conduct the fact-finding necessary to decide that limited dispute. Should the court find in favor of the employer, the appropriate remedy is to order the EEOC to undertake the mandated efforts to obtain voluntary compliance.
Accordingly, if the EEOC files suit without undertaking a good faith effort to resolve the dispute, the employer may force the conciliation issue by challenging the EEOC’s efforts. This requirement may be helpful in the situation where the employer prefers to resolve the dispute before the EEOC initiates litigation, but it will not bar the litigation. That being said, the Supreme Court refers to the EEOC’s obligation as “relatively barebones” 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.