Executive Summary: In a limited victory for employers, the Supreme Court held last week in Mach Mining, LLC v. EEOC that courts have jurisdiction to review whether the Equal Employment Opportunity Commission (“EEOC”) fulfilled its statutory obligation to conciliate with an employer before filing a lawsuit against it. A court’s scope of review is extremely limited, however, with an inquiry limited to the quality or nature of the EEOC’s conciliation efforts. Courts may review that the EEOC: 1) informed the employer about the nature of the alleged discrimination and which employee(s) have allegedly suffered from such discrimination, and 2) tried to “engage the employer in some form of discussion,” written or oral. If the court finds the EEOC neglected these “barebones” requirements to conciliate prior to litigation, the employer’s remedy is a stay of the lawsuit and an order requiring the EEOC to undertake the mandated conciliation efforts.
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