On Wednesday of this week, the U.S. Supreme Court unanimously vacated and remanded a 7th Circuit decision that said courts could not review whether the Equal Employment Opportunity Commission (EEOC) satisfied its conciliation obligations under Title VII. Mach Mining LLC v. EEOC, No. 13-1019 (2015). The review the Court permitted, however, remains limited and courts are only to enforce the EEOC’s obligation to give an employer notice and a chance to achieve voluntary compliance. The court made a point to recognize that the EEOC still had “extensive discretion to determine the kind and amount of communication with an employer in any given case.”

Under Title VII, if the EEOC determines that there is reasonable cause that discrimination exists, it has a responsibility to remedy that discrimination through informal methods of “conference, conciliation, and persuasion.” 42 U.S.C. 2000e-5(b). If the EEOC is unable to obtain conciliation that is “acceptable to the commission” only then may it file suit.  42 U.S.C. 2000e-5(f)(1).

The Court determined the EEOC’s obligations amount to informing the employer about the specific discrimination allegation and describing what the employer has done and which employees have suffered. Then, the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the alleged discriminatory practice.  The EEOC does not have much to do to show that is has met this obligation, however. A sworn affidavit from the EEOC stating that it has performed these obligations is sufficient. The employer must then present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating a claim. Should the court find for the employer, the remedy is only to order the EEOC to undertake mandatory conciliation efforts.

The facts in Mach Mining involved a woman who filed a charge against the company claiming that it refused to hire her as a coal miner because of her sex. The EEOC investigated the claim and determined that reasonable cause existed to believe that the company had engaged in discriminatory hiring practices. The EEOC sent a letter to Mach Mining stating that it was invited to participate in informal conciliation proceedings with the charging party and notifying them that a representative of the EEOC would be contacting them to begin the process. One year later, the EEOC sent Mach Mining another letter stating it had determined conciliation efforts had been unsuccessful. The EEOC thereafter brought suit against the company in federal court. The Company defended that the EEOC had not fulfilled its obligation to conciliate and the commission countered that conciliation obligations were unreviewable.

The Supreme Court’s decision is a bit of mixed bag for employers. Hopefully, it will force the EEOC to engage in more meaningful conciliation efforts in the future and give the EEOC and employers more latitude in their efforts to avoid litigation. On the other hand, the scope of review is so narrow and the remedy for employers so limited that there is little incentive for employers to pursue this issue once the complaint is filed.