Supreme Court Clarifies Judicial Review of the EEOC’s Pre-Suit Conciliation Efforts

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Today, the U.S. Supreme Court held in a unanimous decision, that courts have the authority to review the EEOC’s pre-suit conciliation efforts, resolving a split among the circuits and clarifying the scope of judicial oversight and the EEOC.

In 2008, an employee of Mach Mining filed a sex discrimination complaint with the EEOC. After finding “reasonable cause” to believe that Mach Mining had discriminated against a class of female applicants, the EEOC attempted to reach a conciliation agreement with Mach Mining before filing suit (as mandated by Title VII). The parties were unable to reach an agreement, and the EEOC filed a complaint on behalf of the female applicants against Mach Mining.

Mach Mining denied the discrimination claims and argued that the EEOC did not engage in good faith pre-suit conciliation efforts. The EEOC moved for summary judgment and argued that the EEOC’s conciliation practices were unreviewable by the courts. The district court denied the EEOC’s motion and certified to the Seventh Circuit the question of whether and to what extent conciliation is judicially reviewable. The Seventh Circuit held that the EEOC’s pre-suit conciliation efforts were not reviewable by the court because there was no statutory standard of review for the conciliation process.

Today the Supreme Court vacated the Seventh Circuit’s decision and endorsed a very limited judicial review of the EEOC’s pre-suit conciliation efforts. The Supreme Court held that the EEOC must attempt to engage the employer in a discussion pre-suit “so as to give the employer an opportunity to remedy the allegedly discriminatory practice.”  But the Court held that judicial review of the conciliation process is just that—a narrow review of whether or not the EEOC met the conciliation requirements as set forth in Title VII, 42 U.S.C. § 2000e-5(b). The Court acknowledged that the EEOC can show it has met the conciliation requirement simply by submitting a sworn affidavit stating it has performed its conciliation obligations.

Although the scope of review over the EEOC’s informal pre-suit methods of conciliation is limited, the decision gives some comfort to employers because it clearly holds that the EEOC’s conciliation efforts can be reviewed by the courts, even if such review is “relatively barebones.”