Under Title VII and related federal civil rights laws, if the Equal Employment Opportunity Commission finds cause to believe that an employee’s rights have been violated, the agency is required to attempt to negotiate a resolution of the dispute through a process called conciliation. However, many employers receiving cause determinations have faced a “take it or leave it” demand from the EEOC, with the agency refusing to negotiate, share information, or to otherwise explore compromise.

When these matters lead to suits filed against the employer by the EEOC, the defendants have challenged the legal sufficiency of the conciliation process, alleging that the agency failed to meet its statutory obligation to seek a resolution prior to filing suit. In the past, federal courts have been willing to look into the issue of adequate conciliation efforts, but have applied a range of standards with regard to the EEOC’s obligations. However last year, the Seventh Circuit Court of Appeals concluded in EEOC v. Mach Mining that the EEOC had wide discretion whether or not to seek a settlement prior to filing suit, and that employers faced with lawsuits could not challenge the sufficiency of the conciliation efforts.

At the end of its term last week, the U.S. Supreme Court agreed to review Mach Mining. Hopefully, the Court will issue a uniform rule regarding conciliation that will end the EEOC’s practice of tailoring its settlement efforts to the legal jurisdiction where the matter arose. Arguments in this case will be scheduled for the Fall, with a decision expected next year.