BasketballThe heads of officiating at the Supreme Court called a technical foul on the EEOC for being too Cavalier about its obligation to conciliate before lacing up its Converse All-Stars and heading to court. Mach Mining v. EEOC (April 29, 2015).

The need for judicial instant replay arose when a woman applied for a coal mining job with Mach Mining, was not hired, and complained to the EEOC that she was not hired because of her sex. (Her application was Knicks-ed.) The EEOC sent Mach Mining a letter indicating that the agency would attempt to conciliate. Then, nothing happened until a year later, when the EEOC sent another letter declaring that (Magic!) conciliation efforts had failed.

Mach Mining cried foul, arguing that the EEOC did nothing to comply with its statutory obligation to try to conciliate before filing a lawsuit. The EEOC said, hey, litigation is like street ball, and we call our own fouls, so no foul. Trust us. (Right….and Kelly Olynyk was just trying to give Kevin Love a shoulder massage.) The agency argued that its conciliation efforts were not subject to judicial review.

The refs at the Seventh Circuit decided to be Trail Blazers. They agreed with the EEOC, even though other courts of appeal that considered the issue took the opposite view.

The Supreme Court reversed the call, ruling 9-0 that courts may review the sufficiency of the EEOC’s pre-suit conciliation efforts, but the scope of that review is limited.

Here are the new rules:

First, the EEOC must inform the employer of the specific unlawful act being alleged (“what the employer has done”) and “which employees (or what class of employees) have suffered as a result.”

Then, the EEOC must “try to engage the employer in some sort of discussion (whether written or oral) so as to give the employer an opportunity to remedy the allegedly discriminatory practice.”

A sworn affidavit from the EEOC stating that it has complied with these specific obligations will typically suffice, but the employer may then call Bulls-(h*t) and contest whether those disclosures and efforts indeed took place, in which case the court may review the underlying facts to determine whether these requirements were satisfied.

Although this decision preserves the employer’s right to challenge the EEOC’s efforts, a win on this issue will not necessarily take the Heat off the employer. If the court determines that the EEOC failed to perform the required conciliation efforts, the remedy will be to order the EEOC to comply. In other words, the case does not get dismissed; the EEOC gets a do-over…like the Soviets in the 1972 Olympics final.

The Net(s) result for employers: a few small Nuggets of good news, but no series sweep. First, the EEOC must make certain basic disclosures before it can file a lawsuit. Second, employers can force the EEOC to engage in settlement discussions before the agency may file a lawsuit.

But an employer’s successful challenge, claiming the EEOC failed to meet its burden, will serve merely to inconvenience the EEOC and will not be sufficient to defeat the agency’s lawsuit in a motion to dismiss. A successful employer challenge, therefore, will be more like the temporary annoyance of smooth elevator Jazz, lacking the bone-chilling Thunder of an angry pack of Grizzlies.