More than 50 years after the enactment of Title VII of the Civil Rights Act of 1964, federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission's ("EEOC") pre-suit obligations. Title VII gives the EEOC the authority to enforce the statute's prohibition on discrimination in the workplace. Before filing suit against an employer, the EEOC must satisfy several pre-suit requirements, including an attempt to eliminate the unlawful practice "by informal methods of conference, conciliation, and persuasion." Courts disagree on the following: (1) whether the EEOC's conciliation efforts are subject to judicial review; (2) what the standard of judicial review should be; (3) what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and (4) whether the EEOC may bring suit on behalf of unidentified individuals under § 706 of Title VII. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to find that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. The U.S. Supreme Court granted Mach Mining's petition for certiorari, and rendered its decision on April 29, 2015, as this article went to press.

The Court did not specifically adopt the approach recommended by any of the lower courts. Although it disagreed with the Seventh Circuit's conclusion that conciliation efforts are not reviewable, the Court's decision and reasoning were more consistent with arguments made by the Seventh Circuit than by other circuit courts of appeal. The Supreme Court found that Title VII calls for a "relatively barebones review" of the EEOC's efforts. To satisfy its pre-suit obligations, the Court stated, the EEOC must inform the employer of the specific allegation and identify which individuals or class of employees suffered from the alleged discrimination. The Commission must then engage in discussion with the employer to attempt to resolve the problem. The EEOC must present some evidence verifying its efforts to conciliate and a court may review an employer's contention that conciliation did not occur. A court's review of the conciliation efforts is limited to fact-finding on those issues, the Supreme Court stated. The Supreme Court's decision largely echoes the Seventh Circuit's concern that courts recognize the broad discretion that Title VII gives to the EEOC in resolving disputes, the importance of Title VII's confidentiality provision, and Title VII's overarching goal of eradicating discrimination in the workplace. The Court stated that the remedy for failure to conciliate is more conciliation and not dismissal on the merits.



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