Hunton Employment & Labor Perspectives

We previously reported on the U.S. Supreme Court’s decision in Mach Mining, LLC v. EEOC, 135 S.Ct. 1645 (2015), wherein the Court held that a court may review the EEOC’s conciliation efforts.

On remand, the EEOC renewed its motion for partial summary judgment on Mach Mining’s failure to conciliate affirmative defense. On January 19, 2016, the U.S. District Court for the Southern District of Illinois granted the motion, finding that the Supreme Court had expressly rejected Mach Mining’s position that it is entitled to receive demand calculations and additional information during the conciliation process. EEOC v. Mach Mining, LLC, No. 11-cv-00879, 2016 BL 13454 (Jan. 19, 2016).

Citing to the Supreme Court’s decision, the district court noted that judicial review of the EEOC’s conciliation efforts is limited, and the ‘“EEOC need only ‘endeavor’ to conciliate a claim without having to devote a set amount of time or resources to that project.”’ The district court further noted that the Supreme Court rejected the argument that the EEOC was required to ‘“lay out ‘the factual and legal basis for’ all of its positions, including the calculations underlying any monetary request,’” or that the EEOC ‘“refrain from making ‘take-it-or-leave-it’ offers.”’

Employers asserting the affirmative defense of failure to conciliate should be mindful of the possible limited scope of review the courts will apply when challenging the EEOC’s conciliation efforts or the lack thereof. Specifically, the crucial inquiry, as posed under the Supreme Court’s earlier decision, will be whether the EEOC satisfied its statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. Accordingly, employers who are involved in the conciliation process with the EEOC should actively participate in and engage the EEOC during the conciliation discussions, timely respond to all EEOC inquiries, and properly document any such discussions.