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Supreme Court Parses Review of EEOC Internal Acts

AARP urged the U.S. Supreme Court to allow the Equal Employment Opportunity Commission (EEOC) discretion to consider pre-litigation settlement (“conciliation”) steps without having to later defend decisions not to settle. In short, AARP cautioned the Supreme Court against punishing plaintiffs when courts decide that the EEOC has not done its job to the court’s satisfaction.


Title VII of the Civil Rights Act instructs the EEOC to engage in voluntary conciliation efforts prior to beginning lawsuits against an employer. Federal courts of appeal were sharply divided as to what this means. Three required only that the EEOC be “genuine” in its efforts -- the EEOC was not required to continue conciliation efforts after the employer rejected the agency’s initial offer.

Three others required that the EEOC: (1) outline reasonable cause for its belief that Title VII has been violated; (2) give the employer a chance to choose voluntary compliance; and (3) respond flexibly to any reasonable positions taken by the employer.   Back-and-forth negotiations were required.

In the case before the U.S. Supreme Court, the agency brought claims of sex discrimination against the Mach Mining company after failing to secure a conciliation agreement. Mach Mining  alleged that the EEOC failed to conciliate properly, so the case should be dismissed. The U.S. Court of Appeals for the Seventh Circuit explicitly departed from other courts’ decisions and held that there is no “failure-to-conciliate” defense, and further, that the EEOC’s conciliation efforts are not reviewable by courts.

AARP’s brief, filed by attorneys with AARP Foundation Litigation in conjunction with three other civil rights organizations, argued that even if the Court disagreed with the Seventh Circuit and found failure to conciliate an appropriate defense, allowing an employer to dismiss a case for this reason is an unduly harsh remedy that deprives victims of the right to challenge discrimination. Many victims of discrimination cannot afford to hire a lawyer and must rely on the EEOC’s enforcement powers. The brief also warned that allowing searching review of the conciliation process would undermine Title VII’s requirement that all information disclosed in conciliation remain confidential.

The Court reversed the Seventh Circuit but issued an ultimately positive opinion, allowing  a “relatively barebones review” of conciliation efforts.  Only if an employer produces “credible evidence” that the EEOC did not provide information supporting its settlement position, or did not actually engage in a discussion of settlement at all, could a court delve deeper. The Court emphasized the importance of preserving confidentiality in conciliation and ruled that the appropriate remedy upon a finding of insufficient conciliation was remand for further settlement talks, rather than dismissal – a result that avoids cutting off plaintiffs’ rights when courts find a deficiency in the agency’s process.

What’s at Stake

The decision’s impact on enforcement procedures remains to be seen.

Case Status

Mach Mining v. EEOC was decided by the U.S. Supreme Court.