On April 29, 2015, the United States Supreme Court issued its decision in a legal battle over judicial oversight of the Equal Employment Opportunity Commission’s obligation to pursue conciliation prior to filing a lawsuit under Title VII of the Civil Rights Act of 1964. 

Under the statutory language of Title VII, the EEOC cannot file a lawsuit until it has first “endeavor[ed] to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  If conciliation fails, then the EEOC may proceed with a lawsuit in federal court.  The issue before the Supreme Court in Mach Mining, LLC v. EEOC was whether courts have authority to review whether the EEOC has fulfilled its conciliation obligation; and, if so, what is the appropriate scope for such a review.

In a unanimous decision, the Court:

• Vacated a Seventh Circuit determination that the statutory directive to attempt conciliation is not subject to judicial review, holding that courts have the authority to review whether the EEOC has fulfilled its duty under Title VII; and
• Held that such a review is “narrow,” thereby respecting the EEOC’s “extensive discretion” to determine the kind and amount of communication that is appropriate with any given employer while still ensuring compliance with its obligations.

Justice Kagan, writing for the Court, recognized the strong (yet rebuttable) presumption favoring judicial review, noting that “Congress rarely intends to prevent courts from enforcing its directives to federal agencies.”  Here, the Court held, the compulsory prerequisite that the EEOC engage in conciliation efforts is rightly within the Court’s purview, despite the Government’s argument that Congress provided “no standards” for a judge to apply in reviewing the EEOC’s performance.   The Court viewed with disfavor the idea that “the Commission’s compliance with the law would rest in the Commission’s hands alone.” 

Turning to the standard to apply in such cases, the Supreme Court struck a balance between a more “intrusive review” sought by Mach Mining and the “minimalist” approach urged by the U.S. Government.   The Court adopted a narrow or “relatively barebones” review to ensure that the EEOC complied with the express requirements of the statute, but noted that a “sworn affidavit from the EEOC stating that it has performed the obligations …but that its efforts have failed will usually suffice….”