By Gerald L. Maatman, Jr.

As our loyal blog readers know, we have followed the course of the Supreme Court proceedings in Mach Mining v. EEOC , No. 13-1019 (U.S.) with keen interest. Our prior posts are here, here, here, and here. Simply stated, this case has the potential to be a real game-changer for employers.

This afternoon Mach Mining filed the last brief with the SCOTUS prior to the oral argument set for January 13, 2015. Mach Mining’s reply brief is here.

The Context And The Stakes

Mach Mining v. EEOC is a big case for employers and for government enforcement litigation. In a game-changing decision in December 2013, the U.S. Court of Appeals for the Seventh Circuit ruled that an alleged failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit brought by the EEOC. That decision has had far-reaching, real world significance to the employment community, for it means the EEOC is virtually immune from review in terms of the settlement positions it takes – “pay millions or we will sue and announce it in a media release – prior to suing employers.

We have analyzed this case at various points before, as the litigation winded through the lower courts and culminated in the precedent-setting decision of the Seventh Circuit reported at 738 F.3d 171 (7th Cir. 2013). In essence, the Seventh Circuit determined that the EEOC’s pre-lawsuit conduct in the context of conciliation activities cannot be judicially reviewed. Subsequently, in what many SCOTUS watchers found ironic, even the though the EEOC prevailed in the Seventh Circuit, the Government also backed Mach Mining’s request for SCOTUS review to resolve the disagreement among the courts of appeals regarding the EEOC’s conciliation obligations. Given the stakes, the SCOTUS accepted Mach Mining’s petition for certiorari in short order to resolve this issue.

Opening Brief And Amicus Briefs For The Defense

Mach Mining filed is opening brief on September 4, 2014. Subsequently, employer groups lined up behind Mach Mining to support reversal of the Seventh Circuit’s decision. Seyfarth Shaw LLP submitted an amicus brief to the U.S. Supreme Court on behalf of the American Insurance Association in Mach Mining. For our loyal blog readers interested in our amicus brief, a copy is here.

Mach Mining’s Reply Brief

The EEOC filed it opposition brief on October 27, 2014. Mach Mining’s reply brief takes the Government’s position to task. It argues that judicial review of the condition precedent for the EEOC instituting a lawsuit must be meaningful. It criticizes the EEOC’s contention that a simple letter of determination – attesting to the failure of conciliation – is perfunctory and a self-serving standard if that is all that Title VII requires. As Mach Mining put it, “[a]t best, the EEOC’s [proposed] letters would show that the Commission is satisfied that it has met its conciliation obligation[,…] but accepting an agency’s representation that it believes it has complied with the law amounts to no judicial review at all.’ Reply Brief, at 2 (emphasis in original). Mach Mining asserts that nothing within Title VII “justifies such toothless review.” Id.

Implications For Employers

Next up is oral argument at the SCOTUS on January 13, 2015. Stay tuned.

Readers can also find this post on our EEOC Countdown blog here.