Voluntary compliance is a core component of federal anti-discrimination law. The drafters of Title VII and other anti-discrimination statutes never envisioned a regulatory system where the government would use the courts to bludgeon employers into compliance. When created in 1964, the U.S. Equal Employment Opportunity Commission lacked the power to file suit on behalf of aggrieved employees. Rather, the agency’s mandate was to combat employment discrimination “by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). Only later, in 1972, did Congress grant the agency authority to sue. And, even then, the agency was to continue “settling disputes, if possible, in an informal, non-coercive fashion.” Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 368 (1977).

But what if the EEOC ignores this duty and treats the conciliation process as just a procedural hoop? Can it still sue the employer? A number of courts have answered this question negatively. The EEOC must attempt meaningful conciliation. As two recent, widely-reported cases illustrate, the agency’s failure to do so can result in dismissal of its claims and even sanctions. See EEOC v. Bloomberg, No. 07-cv-8383, 2013 U.S. Dist. LEXIS 128385, (S.D.N.Y. Sept. 9, 2013) (dismissing class action brought when the EEOC refused to conciliate individual claims beyond the original charging parties) and EEOC v. CRST Van Expedited Inc., No. 07-cv-95, 2013 U.S. Dist. LEXIS 107822 (N.D. Iowa Aug 1, 2013) (dismissing claims of multiple complainants based on the EEOC’s failure to conciliate their claims and awarding $4.7 million in attorney fees, costs, and expenses against agency based on multiple litigation abuses).

A decision just handed down by the Seventh Circuit of Appeals on December 20, 2013, however, could upend the ability of employers to assert failure to conciliate as a defense. In EEOC v. Mach Mining, LLC, No 13-2456, 2013 U.S. App. LEXIS 25454 (7th Cir. Dec. 20, 2013), the court concluded that the EEOC’s actions with respect to conciliation are not subject to judicial review. The Seventh Circuit thus rejected the approach adopted by the Second, Fifth, and Eleventh Circuits, all of which evaluate conciliation under a searching three-part inquiry. The Seventh Circuit’s decision likewise varies substantially from rulings by the Fourth, Sixth, and Tenth Circuits, which likewise have held agency conciliation efforts to be reviewable, albeit under a less stringent “good-faith” standard. Id. at *32-34.

The implications of the Mach Mining decision are significant. In recent years, the EEOC has become increasingly aggressive in its enforcement efforts, even as its resources have been shrinking. As a result, some observers suggest, the agency is more prone to pursuing litigation based on haphazard investigations and without meaningful conciliation efforts. Judicial review affords an important curb on agency abuses, as it substantially increases the risks faced by the agency from bringing hastily considered lawsuits. Without this check, the agency is likely to become less selective in the matters that it litigates, more ready to leverage the threat of litigation and the government’s enormous resources to exact inordinate settlements where the merits are questionable, and less mindful of Congress’s directive that encouraging voluntary compliance should be the agency’s first line in combating discrimination.

In the months to come, we will learn whether the U.S. Supreme Court will review Mach Mining, thus setting the stage for a decision affecting EEOC enforcement procedures nationally. Mach Mining itself does not affect the law outside the Seventh Circuit. So, employers in the Second Circuit — which includes New York State — and other jurisdictions should continue to remind the agency of its duties to engage in a meaningful voluntary conciliation process whenever the agency engages in heavy-handed pressure tactics. But the battle lines between employers and the EEOC over the role of conciliation as an enforcement mechanism are now drawn.