On April 29, 2015, the U.S. Supreme Court unanimously decided the case of Mach Mining, LLC v. Equal Employment Opportunity Commission. In its anxiously-awaited opinion authored by Justice Kagan, the Court held that federal courts have the authority to review and decide whether the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) has fulfilled its duty under Title VII of the Civil Rights Act of 1964 (“Title VII”) – and, presumably, other statutes imposing a similar duty – to attempt conciliation of a discrimination claim before bringing suit against the charged employer. “But the scope of that review is narrow,” the Court additionally held.

While arguably a “win” for employers, the Mach Mining decision is a moral one at best.

The Seventh Circuit Court of Appeals had held that Title VII does not give employers an affirmative defense (that is, a defense the employer must carry the burden of proving) to an allegation of discrimination that the EEOC has failed to conciliate adequately. In short, according to the Seventh Circuit’s view before the decision, the courts had no authority to review the adequacy of the EEOC’s attempts at conciliation in a case in order to decide if the Commission had met its obligation under that statute. 

Reversing the Court of Appeals, the Supreme Court held that Title VII imposes a “mandatory duty” on the EEOC to attempt conciliation before the filing of a lawsuit. And judicial review of an agency’s compliance with such a duty is presumptive, except, the Court said, where a statute’s language or structure demonstrates that Congress intended the agency in issue to police itself. Nothing in Title VII’s language or structure, the Court held, rebuts that presumption.

The EEOC had brought suit against Mach Mining for alleged sex discrimination based upon both disparate treatment and disparate theories of liability. The company had alleged as an affirmative defense, among others, that the Commission’s attempt at conciliation under Title VII had been inadequate. Thus, the company had argued, the suit should be dismissed. The Commission had moved for summary judgment on that defense, and the trial court had denied the motion. As noted above, the Seventh Circuit had held that no such affirmative defense exists under Title VII and had reversed and remanded the case to the trial court.

 “We hold,” the Supreme Court said in reversing the Seventh Circuit, “that a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit. But we find that the scope of that review is narrow, thus recognizing the EEOC’s extensive discretion to determine the kind and amount of communications with an employer appropriate in any given case.” In short, while federal courts may consider whether the Commission has met its legal obligation to attempt conciliation under Title VII, the Commission nevertheless has much leeway to determine the extent and nature of the attempt it makes.

So what does that mean? According to the Supreme Court, the Commission must do only two things to meet its conciliation obligation under Title VII: 1) It first must inform an employer of the specific allegations against the company – which the Commission traditionally does by way of a letter articulating its finding of “reasonable cause”. Then. 2) the Commission must engage the employer in some type of discussion, written or verbal, in an attempt to remedy the alleged discrimination to the Commission’s satisfaction. The Court did not articulate or describe the lengths to which the Commission must go to meet this second requirement, except to describe them as “informal methods of conference, conciliation and persuasion.” The Court also offered no guidance as to what “standard of satisfaction” the EEOC conciliation must meet. And the Court described the review that federal courts have authority to make of the adequacy of the Commission’s conciliation attempt as “relatively bare bones.”  

The Supreme Court refused to adopt either the EEOC’s or the company’s view of what the “informal methods of conference, conciliation and persuasion” should be. The Commission had urged the Court to adopt the “most minimalist form of review imaginable,” while the company had proposed a standard of review “far more intrusive” of the EEOC’s exercise of its discretion, the Court’s opinion said. Neither of those options, the Court concluded, is consistent with Title VII’s terms and Congress’s expressed and implicit intentions.

The good news is that employers now may challenge the EEOC’s conciliation efforts. The bad news is that the bar for “how much is enough” is extremely low. A “relatively bare bones review” by a court of the EEOC’s conciliation effort in any particular case is unlikely to involve much second-guessing by the court of the Commission’s attempt, so long as the Commission did something. And, we suggest, the Supreme Court’s decision will allow the Commission just “to go through the motions” in a case and conclude, in the end, that conciliation has failed and that a lawsuit is justified. That is the case particularly given that, so long as the Commission has done something in its attempt to conciliate, it always can decide that the result is not to its satisfaction.

In other words, nothing has really changed.