On April 29, 2015, the U.S. Supreme Court unanimously concluded that the Equal Employment Opportunity Commission’s (EEOC) efforts to conciliate a matter before filing suit—a statutory requirement of Title VII—can be reviewed by the courts. Mach Mining, LLC. v. EEOC, No. 13-1019 (April 29, 2015). The Court reversed a Seventh Circuit ruling that the EEOC must merely plead that it attempted conciliation and that its attempt was unsuccessful.

The case arose from a sex discrimination EEOC charge against Mach Mining, LLC (Company), alleging that the Company refused to hire female mineworkers. The EEOC sent the Company a letter inviting it to participate in informal conciliation proceedings, noting that the EEOC’s representative would contact the Company to discuss further. However, no such contact occurred, and one year later the EEOC informed the Company by letter that it considered the conciliation efforts unsuccessful. The EEOC filed suit days later.

As an affirmative defense, the Company asserted that the EEOC did not comply with its obligation to conciliate before filing suit. The EEOC moved for summary judgment on the affirmative defense, contending that its conciliation efforts were not subject to judicial review, so long as its pleadings asserted that it attempted conciliation. The District Court agreed with the Company that it could review the conciliation efforts, but granted leave to immediately appeal the decision to the Seventh Circuit. The Seventh Circuit reversed, concluding that the EEOC’s conciliation obligations were not judicially reviewable.

The U.S. Supreme Court disagreed with the Seventh Circuit, concluding that “Congress imposed a mandatory duty on the EEOC to attempt conciliation” as a precondition to filing a lawsuit, and such efforts should be reviewed by the courts. The EEOC must provide notice to the employer describing “both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice.” The scope of judicial review of the EEOC’s conciliation activities is narrow: a reviewing court must confirm that the EEOC gave the employer notice and an opportunity to comply voluntarily, but will not assess the reasonableness of the efforts.

The Court attempted to strike a balance, recognizing that Title VII requires deference to the EEOC’s conciliation efforts. However, while the EEOC may heighten certain conciliation efforts in the wake of this decision, it still retains discretion to decide what types of efforts are appropriate and, ultimately, what resolution is acceptable. Thus, it remains to be seen whether the EEOC will ultimately try to use a take-it-or-leave-it approach rather than engaging in robust pre-suit bargaining efforts. Likewise, it remains to be seen whether courts will read Mach Mining to impose an obligation on the EEOC to disclose all of the individuals it purports to represent in pattern-or-practice cases and demonstrate how exactly each was allegedly harmed.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.