The EEOC’s duty to settle cases before filing suit in federal court is subject to judicial review, the Supreme Court recently held. Mach Mining, LLC v. EEOC, 2015 U.S. LEXIS 2984, *2, 83 U.S.L.W. 4283 (U.S. Apr. 29, 2015). In Mach, this issue arose in the context of a suit by the EEOC against an Illinois mining company for failing to hire qualified job applicants.  The EEOC’s investigation concluded that Mach Mining had never hired any female miners, despite an available employee pool from which resulted in applications from many qualified women.  The EEOC filed suit in the United States District Court for the Southern District of Illinois.

However, regardless of the merits of the suit, before filing a complaint in Federal Court, Title VII imposes a duty on the EEOC to attempt to conciliate in good faith, prior to resorting to litigation. According to the employer, the EEOC’s efforts to resolve the suit before filing suit in the Federal District Court of Illinois were meager, consisting only of one letter inviting Mach Mining to participate in informal conciliation proceedings and noting that the employer would be contacted by an EEOC representative, and one other letter a year later stating that the EEOC had determined that conciliation efforts had been unsuccessful. Thus, the employer raised the affirmative defense that the lawsuit should be dismissed based upon the EEOC’s failure to satisfy its duty to conciliate in good faith.

The EEOC moved for summary judgment to strike that affirmative defense, which the District Court denied, finding that “even though the circuits are split on the proper scope of a conciliation review, the courts that have weighed in on the matter agree that conciliation is subject to at least some level of review.” EEOC v. Mach Mining, LLC, 2013 U.S. Dist. LEXIS 10859, *6 (S.D. Ill. Jan 28, 2013).  However, the Court of Appeals for the 7^th Circuit reversed the District Court’s denial of summary judgment, holding that permitting an implied failure to conciliate defense would result in “protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle,” and that the Court “therefore disagree(s) with our colleagues in other circuits and hold(s) that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.” EEOC v. Mach Mining, LLC, 738 F.3d 171, 172-73 (7^th Cir. Ill. 2013).

The United States Supreme Court granted Plaintiff’s petition for writ of certiorari and reversed the Court of Appeals, finding that Title VII’s language requiring the EEOC to, “’endeavor’ to achieve an employer’s voluntary compliance” before going to court, makes clear that “Congress has not left everything to the Commission.” Mach Mining, 2015 U.S. LEXIS 2984, *13; §2000e-5(b).  The Supreme Court observed further that judicial review was necessary to ensure the EEOC’s compliance with Title VII’s requirements that the EEOC gives proper notice that describes both what the employer has done and which employees (or what class of employees) have suffered as a result, and that the EEOC tried to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Id. at 22-24. In doing so, the reviewing court’s scope of review is narrow, as it looks only to whether the EEOC made conciliation efforts, not the substance of the efforts, i.e., the statements made or positions taken during settlement negotiations. Id. at 24. The Court further opined that a sworn affidavit from the EEOC stating that it has performed these obligations, but that its efforts have failed, will usually suffice to show that it has met the conciliation requirement.  Id. at 24-25.

Thus, the Supreme Court vacated the judgment of the Court of Appeals and remanded the case for further proceedings consistent with its opinion. It is now up to the District Court to determine whether or not the EEOC met its obligation to attempt to conciliate with Mach Mining under the standard articulated by the Supreme Court.

By Francine Foner, Esq. and Ty Hyderally, Esq.

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