<b><i>Mach Mining, LLC v. EEOC:</i></b> The Supreme Court Approves Limited Review of EEOC's Conciliation Efforts

The EEOC is empowered to enforce most federal employment discrimination laws by investigating charges of discrimination and, in certain cases, filing civil suits against employers accused of a violation. Very few of the nearly 90,000 discrimination charges filed annually with the EEOC result in a lawsuit by the agency. Nevertheless, the number of new suits filed each year is substantial. Defending a lawsuit brought by the EEOC is a real (and potentially costly) prospect for many employers.

According to statistics published by the EEOC, the agency initiated 133 civil actions alleging discrimination by employers in fiscal year 2014. Although that figure has dropped significantly since earlier in the decade, when the EEOC typically filed over 300 new civil actions each year, the EEOC now focuses its litigation efforts on what it perceives as systemic discrimination. EEOC litigation tends to be high profile litigation, and the EEOC may choose to challenge practices commonly believed to be permissible. For instance, in a series of cases, the EEOC successfully argued that employers who engaged in a common practice of terminating employees after 12 months of medical leave had violated the Americans with Disabilities Act (ADA) by doing so. See, e.g., EEOC v. UPS, Inc., No. 09 C 5291, 2014 WL 538577 (N.D. Ill. Feb. 11, 2014).

When Congress gave the EEOC the authority to sue to enforce Title VII, it also imposed requirements designed to promote the resolution of claims without litigation. Thus, if the EEOC finds reasonable cause to believe that an unfair employment practice has occurred, it may not file suit immediately but must first “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” See 42 U.S.C. ' 2000e-5(b), (f). The conciliation process results in the resolution of claims in many cases. Again according to the EEOC's published statistics, the agency successfully conciliated 1,031 cases in fiscal year 2014.

Judicial Review of the EEOC's Conciliation Efforts: A Growing Circuit Split

Employers sued by the EEOC have occasionally raised as an affirmative defense to a discrimination claim the fact that the agency failed to engage in conciliation or to do so adequately. In evaluating such defenses, the courts have considered several important and recurring questions: May a court review the adequacy of the EEOC's pre-litigation conciliation efforts at all? If so, how robust or deferential is that review? And what is the remedy if the EEOC is found to have failed in its obligation to conciliate?

Until the Supreme Court's decision, the answer largely depended on where the lawsuit was filed. The U.S. Courts of Appeal for the Fourth, Sixth and Tenth Circuits required the EEOC to demonstrate only a fairly minimal level of good-faith effort, and deferred to the EEOC on the form and content of conciliation. These circuits simply asked whether the EEOC had made a reasonable attempt to conciliate. In EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir.1984), for example, the Sixth Circuit stated that the proper standard of judicial review was “whether the EEOC made an attempt at conciliation.” Id. Acknowledging the EEOC's broad discretion, it found the agency's conciliation efforts to have been sufficient where it tried to conciliate and proposed a settlement agreement. After the employer rejected this proposal, the court held, the EEOC had no further duty to conciliate. Id. at 1101-02. Similarly, the Fourth Circuit stated that the law requires “no more than a good faith attempt” by the agency to engage in conciliation. EEOC v. Radiator Specialty Co., 610 F.2d 178, 183 (4th Cir. 1979). It readily found such attempt where the EEOC's letter to the employer included both a notice of its reasonable-cause finding and an invitation to conciliate. The Tenth Circuit took a similarly deferential approach, stating that courts should neither “examine the details of the offers and counteroffers,” nor dictate “what the agreement should provide.” EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978). In short, these circuits generally found that any good-faith attempt at conciliation was enough.

In contrast, the U.S. Courts of Appeal for the Second, Fifth and Eleventh Circuits employed a more demanding, three-part test when evaluating the sufficiency of conciliation efforts. They held that the EEOC satisfies its statutory duty to conciliate if it: 1) “outlines to the employer the reasonable cause for its belief that Title VII has been violated”; 2) “offers an opportunity for voluntary compliance”; and 3) “responds in a reasonable and flexible manner to the reasonable attitudes of the employer.” EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981) (per curiam). Courts applying this regime engaged in more rigorous scrutiny, assessing both “the reasonableness and responsiveness of the EEOC's conduct under all the circumstances.” Id.

In EEOC v. Agro Distribution, LLC, for example, the Fifth Circuit found the EEOC's conciliation efforts to be inadequate because it repeatedly failed to communicate with the employer, abandoned its role as a neutral investigator by making arbitrary assessments, and made a take-it-or-leave-it offer. 555 F.3d 462, 468 (5th Cir. 2009). In EEOC v. Asplundh Tree Expert Co., the Eleventh Circuit used the same three-part test and, upon finding that the proposed agreement “included no theory of liability,” was “impossible to perform,” and required a response on a very short notice, held that the EEOC did not meet its statutory duty to conciliate. 340 F.3d 1256, 1260 (11th Cir. 2003). The Second Circuit also found conciliation attempts inadequate when the employer engaged only in nationwide conciliation that did not specifically address the discriminatory employment practices at issue. EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 19 (2d Cir. 1981).

Courts disagreed not only on the standard of review, but also on the remedy for failure to conciliate. The prevailing view was that the stay of litigation allowed by 42 U.S.C. ' 2000e-5(f)(1) was the appropriate remedy as long as conciliation had at least been attempted in good faith. See EEOC v. Pet, Inc., Funsten Nut Div. , 612 F.2d 1001, 1002-03 (5th Cir. 1980) ( per curiam ). Unless there was “grossly arbirary and unreasonable conduct or substantial prejudice,” the harsh remedy of dismissal was generally deemed unwarranted. EEOC v. Klinger Elec. Corp., 636 F.2d 104, 107 (5th Cir. Unit A 1981). In some cases, however, conciliation efforts by the EEOC that might have been considered sufficient had the more deferential standard of review been applied led instead to dismissal and an award of attorneys' fees. Asplundh Tree Expert Co., 340 F.3d at 1261.

Seventh Circuit Finds Conciliation Efforts to Be Unreviewable

Although the courts discussed above applied varying standards when reviewing the EEOC's conciliation efforts, they all assumed that these efforts are judicially reviewable to some extent. That modest consensus evaporated in Mach Mining, LLC v. EEOC, 738 F.3d 171 (7th Cir. 2013), when the Seventh Circuit became “the first circuit to reject explicitly the implied affirmative defense of failure to conciliate” (id. at 182). Although the court was well aware that every other circuit to have considered the issue had deemed the EEOC's conciliation efforts reviewable, it held to the contrary based on a detailed analysis of “[t]he language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme.” Id. at 172.

The Supreme Court Weighs in

The Supreme Court granted certiorari to review the Seventh Circuit's decision, and unanimously reversed. Mach Mining, LLC v. EEOC, 135 S. Ct. 1645 (2015). The Court explained that there is “a strong presumption favoring judicial review of administrative action” that can be overcome only “when a statute's language or structure demonstrates that Congress wanted an agency to police its own conduct.” Id. at 1651-53. It noted that courts routinely review and enforce other prerequisites to suit under Title VII, such as the requirement that individual plaintiffs file a timely charge with the EEOC and obtain a right-to-sue letter before filing suit. The Court rejected the Government's argument that there are no judicially manageable criteria against which to judge the EEOC's efforts, pointing out that courts could find a violation if the EEOC failed to engage in any conciliation efforts at all. It further explained that Title VII does provide direction regarding the nature of the conciliation efforts required: the EEOC, “to meet the statutory condition, must tell the employer about the claim ' essentially, what practice has harmed which person or class ' and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” Id. at 1652.

The Court then turned to “the proper scope of judicial review of the EEOC's conciliation activities.” Mach Mining, 135 S. Ct. at 1653. The Government argued that a reviewing court could deem the EEOC's conciliation efforts sufficient simply by reviewing letters from the EEOC to the employer purporting to initiate and to terminate the conciliation process. Id . at 1650, 1653. The Court rejected that suggestion, deeming it to represent “the most minimalist form of review imaginable.” Id. at 1653.

But the Court also rejected Mach Mining's position that courts should “do a deep dive into the conciliation process.” Mach Mining, 135 S. Ct. at 1653. It noted that the statute gave the EEOC great flexibility, allowing it to “use in each case whatever 'informal' means of 'conference, conciliation, and persuasion' it deems appropriate.” Id. at 1654.

The Court also emphasized that the EEOC has been granted “discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief.” Id. Finally, it noted, “the EEOC alone decides whether in the end to make an agreement or resort to litigation” ' with the statute expressly providing that the agency “may sue whenever 'unable to secure' terms 'acceptable to the Commission.'” Id. (quoting 42 U.S.C. ' 2000e'5(f)(1)). It concluded that “[f]or a court to assess any of those choices ' as Mach Mining urges and many courts have done,” is inappropriate. Id. at 1654-55.

The Court thus endorsed a “relatively barebones review” that looks at: 1) whether the EEOC has notified the employer about the specific allegation, explaining what the employer is alleged to have done and which employees or class of employees have suffered as a result; and 2) whether the EEOC has tried “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.” Mach Mining, 135 S. Ct. at 1656. The Court explained that a sworn affidavit from the EEOC stating that it has discharged these obligations will be sufficient in most cases. Id. But if the employer provides credible evidence to the contrary, the Court explained, “a court must conduct the factfinding necessary to decide that limited dispute.” Id.

Finally, the Court addressed the proper remedy for a finding that the EEOC has failed to satisfy its conciliation obligation. Should that happen, the Supreme Court explained, the court should stay the case and order the EEOC to undertake the mandatory conciliation efforts. Mach Mining, 135 S. Ct. at 1656.

The Impact of the Supreme Court's Decision

Following Mach Mining, it is now indisputable that if the EEOC entirely fails to satisfy its statutory obligation to conciliate before filing suit, the defendant employer may raise that failure as a defense in litigation. If it prevails in that argument, the defendant may obtain a stay of litigation so that conciliation can occur. A reviewing court will not, however, second-guess the EEOC's methods, its strategy, or the reasonableness of its positions. The Mach Mining decision sends a clear message that the EEOC has broad discretion over these matters. Thus, although the Supreme Court has preserved the right of review, we can predict that review will be far less robust than the review previously approved by the Second, Fifth and Eleventh Circuits.

At the same time, in requiring the EEOC to notify the employer about the specific allegation and to explain what the employer is alleged to have done and which employees or class of employees have suffered as a result, the Court has imposed a higher burden on the EEOC than the EEOC has recently imposed on itself. It remains to be seen whether the Mach Mining decision will cause the EEOC to adjust its approach to the conciliation process. For instance, it has been common for the EEOC to provide notification of the alleged discrimination in only general terms and for the EEOC not to identify the employees who are alleged to have suffered as a result of the discrimination. If the lower courts require the EEOC to provide more information at the outset of the conciliation process as a result of Mach Mining , this will be a positive development both to employers seeking to engage in conciliation and to the EEOC in securing terms to eliminate alleged discrimination.

It remains to be seen whether the lower courts will deem the Supreme Court to have approved the rather lenient “good-faith” test previously employed by the Fourth, Sixth and Tenth Circuits, or whether even that level of review will be deemed too intrusive under the Mach Mining decision. If an employer wishes to invoke the EEOC's obligation to show good faith in the conciliation process, then the employer should also display good faith in its discussions with the EEOC. Although to do so may require careful calibration, there is every reason for employers to negotiate in good faith themselves and to hold the EEOC to a “good-faith” standard in the conciliation process.

Marcia Goodman is a partner in Mayer Brown's Chicago office. She primarily represents global employers on a wide range of U.S. and cross-border employment law matters. Reach her at [email protected]. Miriam Nemetz is a partner in the firm's Washington, DC office. She is a member of the firm's Supreme Court & Appellate practice and has specialized expertise in cases involving punitive damages and employment-related claims. She can be reached at [email protected].

Title VII of the Civil Rights Act of 1964 requires the Equal Employment Opportunity Commission (EEOC) to try to conciliate claims that an employer has engaged in an unlawful employment practice before the EEOC files suit. Last April, in Mach Mining, LLC v. Equal Employment Opportunity Commission , 135 S. Ct. 1645 (2015), the Supreme Court held that the defendant in a lawsuit brought by the EEOC may raise the agency's failure to engage in conciliation as a defense. It reversed a decision by the U.S. Court of Appeals for the Seventh Circuit, which had held ' contradicting other circuits ' that the EEOC's conduct of the conciliation process is not judicially reviewable.

The Supreme Court made clear, however, that the standard under which courts may review the EEOC's conciliation efforts is very deferential. It cautioned that courts should not probe the EEOC's methods or the substance of its positions, but should determine only whether the agency notified the defendant of the alleged violation and attempted conciliation. It also stated that the appropriate remedy for a failure to conciliate is a stay of litigation, not dismissal of the action. Thus, although the prospect of judicial review may help ensure that the EEOC comes to the table to negotiate before filing suit, the failure of conciliation is unlikely in the future to provide a meaningful defense in litigation except in very narrow circumstances.

The EEOC's Duty to Conciliate

The EEOC is empowered to enforce most federal employment discrimination laws by investigating charges of discrimination and, in certain cases, filing civil suits against employers accused of a violation. Very few of the nearly 90,000 discrimination charges filed annually with the EEOC result in a lawsuit by the agency. Nevertheless, the number of new suits filed each year is substantial. Defending a lawsuit brought by the EEOC is a real (and potentially costly) prospect for many employers.

According to statistics published by the EEOC, the agency initiated 133 civil actions alleging discrimination by employers in fiscal year 2014. Although that figure has dropped significantly since earlier in the decade, when the EEOC typically filed over 300 new civil actions each year, the EEOC now focuses its litigation efforts on what it perceives as systemic discrimination. EEOC litigation tends to be high profile litigation, and the EEOC may choose to challenge practices commonly believed to be permissible. For instance, in a series of cases, the EEOC successfully argued that employers who engaged in a common practice of terminating employees after 12 months of medical leave had violated the Americans with Disabilities Act (ADA) by doing so. See, e.g., EEOC v. UPS, Inc. , No. 09 C 5291, 2014 WL 538577 (N.D. Ill. Feb. 11, 2014).

When Congress gave the EEOC the authority to sue to enforce Title VII, it also imposed requirements designed to promote the resolution of claims without litigation. Thus, if the EEOC finds reasonable cause to believe that an unfair employment practice has occurred, it may not file suit immediately but must first “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” See 42 U.S.C. ' 2000e-5(b), (f). The conciliation process results in the resolution of claims in many cases. Again according to the EEOC's published statistics, the agency successfully conciliated 1,031 cases in fiscal year 2014.

Judicial Review of the EEOC's Conciliation Efforts: A Growing Circuit Split

Employers sued by the EEOC have occasionally raised as an affirmative defense to a discrimination claim the fact that the agency failed to engage in conciliation or to do so adequately. In evaluating such defenses, the courts have considered several important and recurring questions: May a court review the adequacy of the EEOC's pre-litigation conciliation efforts at all? If so, how robust or deferential is that review? And what is the remedy if the EEOC is found to have failed in its obligation to conciliate?

Until the Supreme Court's decision, the answer largely depended on where the lawsuit was filed. The U.S. Courts of Appeal for the Fourth, Sixth and Tenth Circuits required the EEOC to demonstrate only a fairly minimal level of good-faith effort, and deferred to the EEOC on the form and content of conciliation. These circuits simply asked whether the EEOC had made a reasonable attempt to conciliate. In EEOC v. Keco Indus., Inc. , 748 F.2d 1097, 1102 (6th Cir.1984), for example, the Sixth Circuit stated that the proper standard of judicial review was “whether the EEOC made an attempt at conciliation.” Id . Acknowledging the EEOC's broad discretion, it found the agency's conciliation efforts to have been sufficient where it tried to conciliate and proposed a settlement agreement. After the employer rejected this proposal, the court held, the EEOC had no further duty to conciliate. Id. at 1101-02. Similarly, the Fourth Circuit stated that the law requires “no more than a good faith attempt” by the agency to engage in conciliation. EEOC v. Radiator Specialty Co. , 610 F.2d 178, 183 (4th Cir. 1979). It readily found such attempt where the EEOC's letter to the employer included both a notice of its reasonable-cause finding and an invitation to conciliate. The Tenth Circuit took a similarly deferential approach, stating that courts should neither “examine the details of the offers and counteroffers,” nor dictate “what the agreement should provide.” EEOC v. Zia Co. , 582 F.2d 527, 533 (10th Cir. 1978). In short, these circuits generally found that any good-faith attempt at conciliation was enough.

In contrast, the U.S. Courts of Appeal for the Second, Fifth and Eleventh Circuits employed a more demanding, three-part test when evaluating the sufficiency of conciliation efforts. They held that the EEOC satisfies its statutory duty to conciliate if it: 1) “outlines to the employer the reasonable cause for its belief that Title VII has been violated”; 2) “offers an opportunity for voluntary compliance”; and 3) “responds in a reasonable and flexible manner to the reasonable attitudes of the employer.” EEOC v. Klingler Elec. Corp. , 636 F.2d 104, 107 (5th Cir. 1981) ( per curiam ). Courts applying this regime engaged in more rigorous scrutiny, assessing both “the reasonableness and responsiveness of the EEOC's conduct under all the circumstances.” Id.

In EEOC v. Agro Distribution, LLC, for example, the Fifth Circuit found the EEOC's conciliation efforts to be inadequate because it repeatedly failed to communicate with the employer, abandoned its role as a neutral investigator by making arbitrary assessments, and made a take-it-or-leave-it offer. 555 F.3d 462, 468 (5th Cir. 2009). In EEOC v. Asplundh Tree Expert Co., the Eleventh Circuit used the same three-part test and, upon finding that the proposed agreement “included no theory of liability,” was “impossible to perform,” and required a response on a very short notice, held that the EEOC did not meet its statutory duty to conciliate. 340 F.3d 1256, 1260 (11th Cir. 2003). The Second Circuit also found conciliation attempts inadequate when the employer engaged only in nationwide conciliation that did not specifically address the discriminatory employment practices at issue. EEOC v. Sears, Roebuck & Co. , 650 F.2d 14, 19 (2d Cir. 1981).

Courts disagreed not only on the standard of review, but also on the remedy for failure to conciliate. The prevailing view was that the stay of litigation allowed by 42 U.S.C. ' 2000e-5(f)(1) was the appropriate remedy as long as conciliation had at least been attempted in good faith. See EEOC v. Pet, Inc., Funsten Nut Div. , 612 F.2d 1001, 1002-03 (5th Cir. 1980) ( per curiam ). Unless there was “grossly arbirary and unreasonable conduct or substantial prejudice,” the harsh remedy of dismissal was generally deemed unwarranted. EEOC v. Klinger Elec. Corp. , 636 F.2d 104, 107 (5th Cir. Unit A 1981). In some cases, however, conciliation efforts by the EEOC that might have been considered sufficient had the more deferential standard of review been applied led instead to dismissal and an award of attorneys' fees. Asplundh Tree Expert Co., 340 F.3d at 1261.

Seventh Circuit Finds Conciliation Efforts to Be Unreviewable

Although the courts discussed above applied varying standards when reviewing the EEOC's conciliation efforts, they all assumed that these efforts are judicially reviewable to some extent. That modest consensus evaporated in Mach Mining, LLC v. EEOC , 738 F.3d 171 (7th Cir. 2013), when the Seventh Circuit became “the first circuit to reject explicitly the implied affirmative defense of failure to conciliate” ( id . at 182). Although the court was well aware that every other circuit to have considered the issue had deemed the EEOC's conciliation efforts reviewable, it held to the contrary based on a detailed analysis of “[t]he language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme.” Id. at 172.

The Supreme Court Weighs in

The Supreme Court granted certiorari to review the Seventh Circuit's decision, and unanimously reversed. Mach Mining, LLC v. EEOC , 135 S. Ct. 1645 (2015). The Court explained that there is “a strong presumption favoring judicial review of administrative action” that can be overcome only “when a statute's language or structure demonstrates that Congress wanted an agency to police its own conduct.” Id. at 1651-53. It noted that courts routinely review and enforce other prerequisites to suit under Title VII, such as the requirement that individual plaintiffs file a timely charge with the EEOC and obtain a right-to-sue letter before filing suit. The Court rejected the Government's argument that there are no judicially manageable criteria against which to judge the EEOC's efforts, pointing out that courts could find a violation if the EEOC failed to engage in any conciliation efforts at all. It further explained that Title VII does provide direction regarding the nature of the conciliation efforts required: the EEOC, “to meet the statutory condition, must tell the employer about the claim ' essentially, what practice has harmed which person or class ' and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.” Id. at 1652.

The Court then turned to “the proper scope of judicial review of the EEOC's conciliation activities.” Mach Mining, 135 S. Ct. at 1653. The Government argued that a reviewing court could deem the EEOC's conciliation efforts sufficient simply by reviewing letters from the EEOC to the employer purporting to initiate and to terminate the conciliation process. Id . at 1650, 1653. The Court rejected that suggestion, deeming it to represent “the most minimalist form of review imaginable.” Id. at 1653.

But the Court also rejected Mach Mining's position that courts should “do a deep dive into the conciliation process.” Mach Mining, 135 S. Ct. at 1653. It noted that the statute gave the EEOC great flexibility, allowing it to “use in each case whatever 'informal' means of 'conference, conciliation, and persuasion' it deems appropriate.” Id. at 1654.

The Court also emphasized that the EEOC has been granted “discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief.” Id. Finally, it noted, “the EEOC alone decides whether in the end to make an agreement or resort to litigation” ' with the statute expressly providing that the agency “may sue whenever 'unable to secure' terms 'acceptable to the Commission.'” Id. (quoting 42 U.S.C. ' 2000e'5(f)(1)). It concluded that “[f]or a court to assess any of those choices ' as Mach Mining urges and many courts have done,” is inappropriate. Id. at 1654-55.

The Court thus endorsed a “relatively barebones review” that looks at: 1) whether the EEOC has notified the employer about the specific allegation, explaining what the employer is alleged to have done and which employees or class of employees have suffered as a result; and 2) whether the EEOC has tried “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.” Mach Mining, 135 S. Ct. at 1656. The Court explained that a sworn affidavit from the EEOC stating that it has discharged these obligations will be sufficient in most cases. Id. But if the employer provides credible evidence to the contrary, the Court explained, “a court must conduct the factfinding necessary to decide that limited dispute.” Id.

Finally, the Court addressed the proper remedy for a finding that the EEOC has failed to satisfy its conciliation obligation. Should that happen, the Supreme Court explained, the court should stay the case and order the EEOC to undertake the mandatory conciliation efforts. Mach Mining, 135 S. Ct. at 1656.

The Impact of the Supreme Court's Decision

Following Mach Mining, it is now indisputable that if the EEOC entirely fails to satisfy its statutory obligation to conciliate before filing suit, the defendant employer may raise that failure as a defense in litigation. If it prevails in that argument, the defendant may obtain a stay of litigation so that conciliation can occur. A reviewing court will not, however, second-guess the EEOC's methods, its strategy, or the reasonableness of its positions. The Mach Mining decision sends a clear message that the EEOC has broad discretion over these matters. Thus, although the Supreme Court has preserved the right of review, we can predict that review will be far less robust than the review previously approved by the Second, Fifth and Eleventh Circuits.

At the same time, in requiring the EEOC to notify the employer about the specific allegation and to explain what the employer is alleged to have done and which employees or class of employees have suffered as a result, the Court has imposed a higher burden on the EEOC than the EEOC has recently imposed on itself. It remains to be seen whether the Mach Mining decision will cause the EEOC to adjust its approach to the conciliation process. For instance, it has been common for the EEOC to provide notification of the alleged discrimination in only general terms and for the EEOC not to identify the employees who are alleged to have suffered as a result of the discrimination. If the lower courts require the EEOC to provide more information at the outset of the conciliation process as a result of Mach Mining , this will be a positive development both to employers seeking to engage in conciliation and to the EEOC in securing terms to eliminate alleged discrimination.

It remains to be seen whether the lower courts will deem the Supreme Court to have approved the rather lenient “good-faith” test previously employed by the Fourth, Sixth and Tenth Circuits, or whether even that level of review will be deemed too intrusive under the Mach Mining decision. If an employer wishes to invoke the EEOC's obligation to show good faith in the conciliation process, then the employer should also display good faith in its discussions with the EEOC. Although to do so may require careful calibration, there is every reason for employers to negotiate in good faith themselves and to hold the EEOC to a “good-faith” standard in the conciliation process.

Marcia Goodman is a partner in Mayer Brown's Chicago office. She primarily represents global employers on a wide range of U.S. and cross-border employment law matters. Reach her at [email protected]. Miriam Nemetz is a partner in the firm's Washington, DC office. She is a member of the firm's Supreme Court & Appellate practice and has specialized expertise in cases involving punitive damages and employment-related claims. She can be reached at [email protected].