By Gerald L. Maatman, Jr., Jennifer A. Riley, and Rebecca S. Bjork 

We have been following developments in an important case regarding judicial review of the EEOC’s statutory obligations to try and resolve discrimination complaints in conciliation before filing suit. Today, the Supreme Court decided to take up consideration of this issue, granting certiorari in Mach Mining, LLC v. EEOC (No. 13-1019). As our previous coverage of this case demonstrates, the outcome could be a game changer in EEOC litigation. The Seventh Circuit had ruled in December 2013 that an alleged failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit brought by the Commission. The Seventh Circuit ruled it will not scrutinize the EEOC’s pre-suit obligations, so long as the EEOC’s complaint pleads it has complied with all procedures required under Title VII, and the relevant documents are facially sufficient. Mach Mining sought Supreme Court review due to conflicting rulings amongst the circuit courts about the courts’ authority and standards for reviewing the EEOC’s pre-suit conduct, and the EEOC did not oppose the petition for certiorari.

The case has significant implications for employers who are dealing with the EEOC. If the Supreme Court sides with the Seventh Circuit, employers will lose a powerful defense against the EEOC’s aggressive litigation tactics. We will continue to follow developments as the parties and amicus groups file their briefs, and keep our readers informed.