The U.S. Supreme Court issued its much-awaited decision in Mach Mining v. Equal Employment Opportunity Commission (EEOC) on April 29, 2015. Employers had been anticipating the Court's guidance as to whether the EEOC must attempt conciliation efforts before filing a lawsuit against an employer on behalf of an aggrieved employee. While the Supremes held the EEOC's failure to conciliate before filing suit was subject to judicial review, they placed narrow limits on that review. In order to satisfy the statutory requirement of conciliation, the EEOC must only: (1) notify the employer of the specific conduct the EEOC believes harmed the employee or class of employees; and (2) try to engage the employer in some form of discussion, either written or oral, to give the employer a chance to remedy the purported discrimination.
That is it – the EEOC doesn't have to do anything else in order to comply. The only judicial review courts can perform is to determine whether the EEOC "attempted to confer." They cannot look at "what happened" during conciliation efforts. The Supremes opined that the judicial review is "bare bones," ruling that the EEOC has "expansive discretion" over the conciliation process.
So, what does the decision mean for employers? Not much. For example, what if the EEOC presents an employer with a "take it or leave it" offer before filing suit? Does that count as a conciliation effort? How much effort does the EEOC really have to make when conciliating with employers? While, on its face, this case appears to side with employers, in reality it does little to provide employers with an EEOC conciliation road map. Settling is often better than litigating, but if the EEOC is determined to pursue your company, it need only make a veiled attempt at "resolving the dispute" prior to filing suit.
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