MacH Mining, LLC v. Equal Emp't Opportunity Comm'n

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MACH MINING, LLC v. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 13–1019. Argued January 13, 2015—Decided April 29, 2015
Before suing an employer for employment discrimination under Title
VII of the Civil Rights Act of 1964, the Equal Employment Oppor-
tunity Commission (EEOC or Commission) must first “endeavor to
eliminate [the] alleged unlawful employment practice by informal
methods of conference, conciliation, and persuasion.” 42 U. S. C.
§2000e–5(b). Once the Commission determines that conciliation has
failed, it may file suit in federal court. §2000e–5(f)(1). However,
“[n]othing said or done during” conciliation may be “used as evidence
in a subsequent proceeding without written consent of the persons
concerned.” §2000e–5(b).
After investigating a sex discrimination charge against petitioner
Mach Mining, LLC, respondent EEOC determined that reasonable
cause existed to believe that the company had engaged in unlawful
hiring practices. The Commission sent a letter inviting Mach Mining
and the complainant to participate in informal conciliation proceed-
ings and notifying them that a representative would be contacting
them to begin the process. About a year later, the Commission sent
Mach Mining another letter stating that it had determined that con-
ciliation efforts had been unsuccessful. The Commission then sued
Mach Mining in federal court. In its answer, Mach Mining alleged
that the Commission had not attempted to conciliate in good faith.
The Commission countered that its conciliation efforts were not sub-
ject to judicial review and that, regardless, the two letters it sent to
Mach Mining provided adequate proof that it had fulfilled its statuto-
ry duty. The District Court agreed that it could review the adequacy
of the Commission’s efforts, but granted the Commission leave to
immediately appeal. The Seventh Circuit reversed, holding that the
2 MACH MINING, LLC v. EEOC
Syllabus
Commission’s statutory conciliation obligation was unreviewable.
Held:
1. Courts have authority to review whether the EEOC has fulfilled
its Title VII duty to attempt conciliation. This Court has recognized
a “strong presumption” that Congress means to allow judicial review
of administrative action. Bowen v. Michigan Academy of Family
Physicians, 476 U. S. 667, 670. That presumption is rebuttable when
a statute’s language or structure demonstrates that Congress intend-
ed an agency to police itself. Block v. Community Nutrition Institute,
467 U. S. 340, 349, 351. But nothing rebuts that presumption here.
By its choice of language, Congress imposed a mandatory duty on
the EEOC to attempt conciliation and made that duty a precondition
to filing a lawsuit. Such compulsory prerequisites are routinely en-
forced by courts in Title VII litigation. And though Congress gave the
EEOC wide latitude to choose which “informal methods” to use, it did
not deprive courts of judicially manageable criteria by which to re-
view the conciliation process. By its terms, the statutory obligation
to attempt conciliation necessarily entails communication between
the parties concerning the alleged unlawful employment practice.
The statute therefore requires the EEOC to notify the employer of
the claim and give the employer an opportunity to discuss the matter.
In enforcing that statutory condition, a court applies a manageable
standard. Pp. 4–8.
2. The appropriate scope of judicial review of the EEOC’s concilia-
tion activities is narrow, enforcing only the EEOC’s statutory obliga-
tion to give the employer notice and an opportunity to achieve volun-
tary compliance. This limited review respects the expansive
discretion that Title VII gives the EEOC while still ensuring that it
follows the law.
The Government’s suggestion that review be limited to checking
the facial validity of its two letters to Mach Mining falls short of Title
VII’s demands. That standard would merely accept the EEOC’s word
that it followed the law, whereas the aim of judicial review is to veri-
fy that the EEOC actually tried to conciliate a discrimination charge.
Citing the standard set out in the National Labor Relations Act,
Mach Mining proposes review for whether the EEOC engaged in
good-faith negotiation, laying out a number of specific requirements
to implement that standard. But the NLRA’s process-based approach
provides a poor analogy for Title VII, which ultimately cares about
substantive outcomes and eschews any reciprocal duty to negotiate in
good faith. Mach Mining’s proposed code of conduct also conflicts
with the wide latitude Congress gave the Commission to decide how
to conduct and when to end conciliation efforts. And because infor-
mation obtained during conciliation would be necessary evidence in a
Cite as: 575 U. S. ____ (2015) 3
Syllabus
good-faith determination proceeding, Mach Mining’s brand of review
would violate Title VII’s confidentiality protections.
The proper scope of review thus matches the terms of Title VII’s
conciliation provision. In order to comply with that provision, the
EEOC must inform the employer about the specific discrimination al-
legation. Such notice must describe what the employer has done and
which employees (or class of employees) have suffered. And the
EEOC must try to engage the employer in a discussion in order to
give the employer a chance to remedy the allegedly discriminatory
practice. A sworn affidavit from the EEOC stating that it has per-
formed these obligations should suffice to show that it has met the
conciliation requirement. Should the employer present concrete evi-
dence that the EEOC did not provide the requisite information about
the charge or attempt to engage in a discussion about conciliating the
claim, a court must conduct the factfinding necessary to resolve that
limited dispute. Should it find for the employer, the appropriate
remedy is to order the EEOC to undertake the mandated conciliation
efforts. Pp. 8–14.
738 F. 3d 171, vacated and remanded.
KAGAN, J., delivered the opinion for a unanimous Court.
Cite as: 575 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
noti y the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1019
_________________
MACH MINING, LLC, PETITIONER v. EQUAL EM-
PLOYMENT OPPORTUNITY COMMISSION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[April 29, 2015]
JUSTICE KAGAN delivered the opinion of the Court.
Before suing an employer for discrimination, the Equal
Employment Opportunity Commission (EEOC or Commis-
sion) must try to remedy unlawful workplace practices
through informal methods of conciliation. This case re-
quires us to decide whether and how courts may review
those efforts. We hold that a court may review whether
the EEOC satisfied its statutory obligation to attempt
conciliation before filing suit. But we find that the scope
of that review is narrow, thus recognizing the EEOC’s
extensive discretion to determine the kind and amount of
communication with an employer appropriate in any given
case.
I
Title VII of the Civil Rights Act of 1964, 78 Stat. 241,
42 U. S. C. §2000e et seq., sets out a detailed, multi-step
procedure through which the Commission enforces the
statute’s prohibition on employment discrimination. The
process generally starts when “a person claiming to be
aggrieved” files a charge of an unlawful workplace practice
with the EEOC. §2000e–5(b). At that point, the EEOC
2 MACH MINING, LLC v. EEOC
Opinion of the Court
notifies the employer of the complaint and undertakes an
investigation. See ibid. If the Commission finds no “rea-
sonable cause” to think that the allegation has merit, it
dismisses the charge and notifies the parties. Ibid. The
complainant may then pursue her own lawsuit if she
chooses. See §2000e–5(f )(1).
If, on the other hand, the Commission finds reasonable
cause, it must first “endeavor to eliminate [the] alleged
unlawful employment practice by informal methods of
conference, conciliation, and persuasion.” §2000e–5(b). To
ensure candor in those discussions, the statute limits the
disclosure and use of the participants’ statements: “Noth-
ing said or done during and as a part of such informal
endeavors” may be publicized by the Commission or “used
as evidence in a subsequent proceeding without the writ-
ten consent of the persons concerned.” Ibid. The statute
leaves to the EEOC the ultimate decision whether to
accept a settlement or instead to bring a lawsuit. So long
as “the Commission has been unable to secure from the
respondent a conciliation agreement acceptable to the
Commission” itself, the EEOC may sue the employer.
§2000e–5(f )(1).
This case began when a woman filed a charge with the
EEOC claiming that petitioner Mach Mining, LLC, had
refused to hire her as a coal miner because of her sex. The
Commission investigated the allegation and found reason-
able cause to believe that Mach Mining had discriminated
against the complainant, along with a class of women who
had similarly applied for mining jobs. See App. 15. In a
letter announcing that determination, the EEOC invited
both the company and the complainant to participate in
“informal methods” of dispute resolution, promising that a
Commission representative would soon “contact [them] to
begin the conciliation process.” Id., at 16. The record does
not disclose what happened next. But about a year later,
the Commission sent Mach Mining a second letter, stating
Cite as: 575 U. S. ____ (2015) 3
Opinion of the Court
that “such conciliation efforts as are required by law have
occurred and have been unsuccessful” and that any fur-
ther efforts would be “futile.” Id., at 18–19.
The EEOC then sued Mach Mining in federal district
court alleging sex discrimination in hiring. The Commis-
sion’s complaint maintained that “[a]ll conditions prece-
dent to the institution of this lawsuit”—including an
attempt to end the challenged practice through concilia-
tion—“ha[d] been fulfilled.” Id., at 22. In its answer,
Mach Mining contested that statement, asserting that the
EEOC had failed to “conciliat[e] in good faith” prior to
filing suit. Id., at 30.
The Commission subsequently moved for summary
judgment on that issue, contending that its “conciliation
efforts are not subject to judicial review.” Motion for
Summary Judgment in No. 3:11–cv–00879 (SD Ill.), p. 1.
At most, the Commission argued, the court could inspect
the EEOC’s two letters to Mach Mining to confirm that the
EEOC had met its duty to attempt conciliation. See id., at
11, 19. Mach Mining responded by urging the court to
consider the overall “reasonable[ness]” of the EEOC’s
efforts, based on evidence the company would present
about the conciliation process. Memorandum in Opposi-
tion to Motion for Partial Summary Judgment in No. 3:11–
cv–00879 (SD Ill.), p. 20. The trial court agreed with Mach
Mining that it should review whether the Commission had
made “a sincere and reasonable effort to negotiate.” Civ.
No. 11–879 (SD Ill., Jan. 28, 2013), App. to Pet. for Cert.
40a, 2013 WL 319337, *5 (internal quotation marks omit-
ted). At the EEOC’s request, the court then authorized an
immediate appeal of its ruling. See Civ. No. 11–879 (SD
Ill., May 20, 2013), App. to Pet. for Cert. 52a–55a, 2013
WL 2177770, *5–*6; 28 U. S. C. §1292(b).
The Court of Appeals for the Seventh Circuit reversed,
holding that “the statutory directive to attempt concilia-
tion” is “not subject to judicial review.” 738 F. 3d 171, 177
4 MACH MINING, LLC v. EEOC
Opinion of the Court
(2013). According to the court, that provision entrusts
conciliation “solely to the EEOC’s expert judgment” and
thus provides no “workable standard” of review for courts
to apply. Id., at 174, 177. The Seventh Circuit further
reasoned that judicial review of the conciliation process
would “undermine enforcement of Title VII” by “pro-
tract[ing] and complicat[ing]” discrimination suits. Id., at
178–179 (quoting Doe v. Oberweis Diary, 456 F. 3d 704,
710 (CA7 2006)). In its concluding paragraph, however,
the court indicated that it had in fact subjected the
EEOC’s activities to a smidgen of review: Because the
Commission “pled on the face of its complaint that it ha[d]
complied with all” prerequisites to suit and because its two
letters to Mach Mining were “facially sufficient” to show
that conciliation had occurred, the court stated, “our re-
view of [that process] is satisfied.” 738 F. 3d, at 184.
Other Courts of Appeals have held that Title VII allows
judicial review of the EEOC’s conciliation efforts, but
without agreeing on what that review entails.1 We granted
certiorari, 573 U. S. ___ (2014), to address whether and
to what extent such an attempt to conciliate is subject to
judicial consideration.
II
Congress rarely intends to prevent courts from enforcing
its directives to federal agencies. For that reason, this
Court applies a “strong presumption” favoring judicial
review of administrative action. Bowen v. Michigan Acad-
emy of Family Physicians, 476 U. S. 667, 670 (1986). That
presumption is rebuttable: It fails when a statute’s lan-
——————
1 See, e.g., EEOC v. Asplundh Tree Expert Co., 340 F. 3d 1256, 1259
(CA11 2003) (holding that the EEOC must, among other things, “re-
spond in a reasonable and flexible manner to the reasonable attitudes
of the employer”); EEOC v. Keco Industries, Inc., 748 F. 2d 1097, 1102
(CA6 1984) (holding that the EEOC must “make a good faith effort to
conciliate”).
Cite as: 575 U. S. ____ (2015) 5
Opinion of the Court
guage or structure demonstrates that Congress wanted an
agency to police its own conduct. See Block v. Community
Nutrition Institute, 467 U. S. 340, 349, 351 (1984). But the
agency bears a “heavy burden” in attempting to show that
Congress “prohibit[ed] all judicial review” of the agency’s
compliance with a legislative mandate. Dunlop v.
Bachowski, 421 U. S. 560, 567 (1975).
Title VII, as the Government acknowledges, imposes a
duty on the EEOC to attempt conciliation of a discrimina-
tion charge prior to filing a lawsuit. See Brief for Re-
spondent 20. That obligation is a key component of the
statutory scheme. In pursuing the goal of “bring[ing]
employment discrimination to an end,” Congress chose
“[c]ooperation and voluntary compliance” as its “preferred
means.” Ford Motor Co. v. EEOC, 458 U. S. 219, 228
(1982) (quoting Alexander v. Gardner-Denver Co., 415
U. S. 36, 44 (1974)). Accordingly, the statute provides, as
earlier noted, that the Commission “shall endeavor to
eliminate [an] alleged unlawful employment practice by
informal methods of conference, conciliation, and persua-
sion.” §2000e–5(b); see supra, at 2. That language is
mandatory, not precatory. Cf. National Railroad Passen-
ger Corporation v. Morgan, 536 U. S. 101, 109 (2002)
(noting that the word “shall” admits of no discretion). And
the duty it imposes serves as a necessary precondition to
filing a lawsuit. Only if the Commission is “unable to
secure” an acceptable conciliation agreement—that is, only
if its attempt to conciliate has failed—may a claim against
the employer go forward. §2000e–5(f )(1).
Courts routinely enforce such compulsory prerequisites
to suit in Title VII litigation (and in many other contexts
besides). An employee, for example, may bring a Title VII
claim only if she has first filed a timely charge with the
EEOC—and a court will usually dismiss a complaint for
failure to do so. See, e.g., id., at 104–105, 114–115. Simi-
larly, an employee must obtain a right-to-sue letter before
6 MACH MINING, LLC v. EEOC
Opinion of the Court
bringing suit—and a court will typically insist on satisfac-
tion of that condition. See, e.g., McDonnell Douglas Corp.
v. Green, 411 U. S. 792, 798 (1973); see also, e.g., Hall-
strom v. Tillamook County, 493 U. S. 20, 26 (1989) (up-
holding dismissal of an environmental suit for failure to
comply with a notice provision serving as a “condition
precedent”); United States v. Zucca, 351 U. S. 91 (1956)
(affirming dismissal of a denaturalization suit because of
the Government’s failure to comply with a mandatory
prerequisite). That ordinary part of Title VII litigation—
see a prerequisite to suit, enforce a prerequisite to suit—
supports judicial review of the EEOC’s compliance with
the law’s conciliation provision.
The Government, reiterating the Seventh Circuit’s view,
contests that conclusion, arguing that Title VII provides
“no standards by which to judge” the EEOC’s performance
of its statutory duty. Brief for Respondent 17. The Gov-
ernment highlights the broad leeway the statute gives the
EEOC to decide how to engage in, and when to give up on,
conciliation. In granting that discretion, the Government
contends, Congress deprived courts of any “judicially
manageable” criteria with which to review the EEOC’s
efforts. Id., at 36 (quoting Heckler v. Chaney, 470 U. S.
821, 830 (1985)). And in that way Congress “demon-
strate[d] [its] intention to preclude judicial review.” Brief
for Respondent 39.
But in thus denying that Title VII creates a “reviewable
prerequisite to suit,” the Government takes its observation
about discretion too far. Id., at 37 (quoting 738 F. 3d, at
175). Yes, the statute provides the EEOC with wide lati-
tude over the conciliation process, and that feature be-
comes significant when we turn to defining the proper
scope of judicial review. See infra, at 10–11. But no,
Congress has not left everything to the Commission.
Consider if the EEOC declined to make any attempt to
conciliate a claim—if, after finding reasonable cause to
Cite as: 575 U. S. ____ (2015) 7
Opinion of the Court
support a charge, the EEOC took the employer straight to
court. In such a case, Title VII would offer a perfectly
serviceable standard for judicial review: Without any
“endeavor” at all, the EEOC would have failed to satisfy a
necessary condition of litigation.
Still more, the statute provides certain concrete stand-
ards pertaining to what that endeavor must entail. Again,
think of how the statute describes the obligatory attempt:
“to eliminate [the] alleged unlawful employment practice
by informal methods of conference, conciliation, and per-
suasion.” §2000e–5(b). Those specified methods neces-
sarily involve communication between parties, including
the exchange of information and views. As one dictionary
variously defines the terms, they involve “consultation or
discussion,” an attempt to “reconcile” different positions,
and a “means of argument, reasoning, or entreaty.” Amer-
ican Heritage Dictionary 385, 382, 1318 (5th ed. 2011).
That communication, moreover, concerns a particular
thing: the “alleged unlawful employment practice.” So 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. See also infra, at
13. If the Commission does not take those specified ac-
tions, it has not satisfied Title VII’s requirement to at-
tempt conciliation. And in insisting that the Commission
do so, as the statutory language directs, a court applies a
manageable standard.
Absent such review, the Commission’s compliance with
the law would rest in the Commission’s hands alone. We
need not doubt the EEOC’s trustworthiness, or its fidelity
to law, to shy away from that result. We need only
know—and know that Congress knows—that legal lapses
and violations occur, and especially so when they have no
consequence. That is why this Court has so long applied a
8 MACH MINING, LLC v. EEOC
Opinion of the Court
strong presumption favoring judicial review of administra-
tive action. See supra, at 4–5. Nothing overcomes that
presumption with respect to the EEOC’s duty to attempt
conciliation of employment discrimination claims.
III
That conclusion raises a second dispute between the
parties: What is the proper scope of judicial review of the
EEOC’s conciliation activities? The Government (once
having accepted the necessity for some review) proposes
that courts rely solely on facial examination of certain
EEOC documents. Mach Mining argues for far more
intrusive review, in part analogizing to the way judges
superintend bargaining between employers and unions.
We accept neither suggestion, because we think neither
consistent with the choices Congress made in enacting
Title VII. The appropriate scope of review enforces the
statute’s requirements as just described—in brief, that the
EEOC afford the employer a chance to discuss and rectify
a specified discriminatory practice—but goes no further.
See supra, at 7; infra, at 13. Such limited review respects
the expansive discretion that Title VII gives to the EEOC
over the conciliation process, while still ensuring that the
Commission follows the law.
The Government argues for the most minimalist form of
review imaginable. Echoing the final paragraph of the
decision below, the Government observes that the EEOC,
in line with its standard practice, wrote two letters to
Mach Mining. See supra, at 2–3, 4. The first, after an-
nouncing the Commission’s finding of reasonable cause,
informed the company that “[a] representative of this
office will be in contact with each party in the near future
to begin the conciliation process.” App. 16. The second,
sent about a year later, stated that the legally mandated
conciliation attempt had “occurred” and failed. Id., at 18.
According to the Government, those “bookend” letters are
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
all a court ever needs for review, because they “establish”
that the EEOC met its obligation to attempt conciliation.
Brief for Respondent 21.
But review of that kind falls short of what Title VII
demands because the EEOC’s bookend letters fail to prove
what the Government claims. Contrary to its intimation,
those letters do not themselves fulfill the conciliation
condition: The first declares only that the process will
start soon, and the second only that it has concluded. The
two letters, to be sure, may provide indirect evidence that
conciliation efforts happened in the interim; the later one
expressly represents as much. But suppose an employer
contests that statement. Let us say the employer files an
affidavit alleging that although the EEOC promised to
make contact, it in fact did not. In that circumstance, to
treat the letters as sufficient—to take them at face value,
as the Government wants—is simply to accept the EEOC’s
say-so that it complied with the law. And as earlier ex-
plained, the point of judicial review is instead to verify the
EEOC’s say-so—that is, to determine that the EEOC
actually, and not just purportedly, tried to conciliate a
discrimination charge. See supra, at 7–8. For that, a
court needs more than the two bookend letters the Gov-
ernment proffers.
Mach Mining, for its part, would have a court do a deep
dive into the conciliation process. Citing the standard set
out in the National Labor Relations Act (NLRA), Mach
Mining wants a court to consider whether the EEOC has
“negotiate[d] in good faith” over a discrimination claim.
Brief for Petitioner 37; see 29 U. S. C. §158(d) (imposing a
duty on employers and unions to bargain “in good faith
with respect to . . . terms and conditions of employment”).
That good-faith obligation, Mach Mining maintains, here
incorporates a number of specific requirements. In every
case, the EEOC must let the employer know the “mini-
mum . . . it would take to resolve” the claim—that is, the
10 MACH MINING, LLC v. EEOC
Opinion of the Court
smallest remedial award the EEOC would accept. Tr. of
Oral Arg. 63. The Commission must also lay out “the
factual and legal basis for” all its positions, including the
calculations underlying any monetary request. Brief for
Petitioner 39. And the Commission must refrain from
making “take-it-or-leave-it” offers; rather, the EEOC has
to go back and forth with the employer, considering and
addressing its various counter-offers and giving it suffi-
cient time at each turn “to review and respond.” Id., at 40.
The function of judicial review, Mach Mining concludes, is
to compel the Commission to abide by these rules.
To begin, however, we reject any analogy between the
NLRA and Title VII. The NLRA is about process and
process alone. It creates a sphere of bargaining—in which
both sides have a mutual obligation to deal fairly—
without expressing any preference as to the substantive
agreements the parties should reach. See §§151, 158(d).
By contrast, Title VII ultimately cares about substantive
results, while eschewing any reciprocal duties of good-
faith negotiation. Its conciliation provision explicitly
serves a substantive mission: to “eliminate” unlawful
discrimination from the workplace. 42 U. S. C. §2000e–
5(b). In discussing a claim with an employer, the EEOC
must always insist upon legal compliance; and the em-
ployer, for its part, has no duty at all to confer or exchange
proposals, but only to refrain from any discrimination.
Those differences make judicial review of the NLRA’s duty
of good-faith bargaining a poor model for review of Title
VII’s conciliation requirement. In addressing labor dis-
putes, courts have devised a detailed body of rules to
police good-faith dealing divorced from outcomes—and so
to protect the NLRA’s core procedural apparatus. But
those kinds of rules do not properly apply to a law that
treats the conciliation process not as an end in itself, but
only as a tool to redress workplace discrimination.
More concretely, Mach Mining’s proposed code of con-
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
duct conflicts with the latitude Title VII gives the Com-
mission to pursue voluntary compliance with the law’s
commands. Every aspect of Title VII’s conciliation provi-
sion smacks of flexibility. To begin with, the EEOC need
only “endeavor” to conciliate a claim, without having to
devote a set amount of time or resources to that project.
§2000e–5(b). Further, the attempt need not involve any
specific steps or measures; rather, the Commission may
use in each case whatever “informal” means of “confer-
ence, conciliation, and persuasion” it deems appropriate.
Ibid. And the EEOC alone decides whether in the end to
make an agreement or resort to litigation: The Commis-
sion may sue whenever “unable to secure” terms “accept-
able to the Commission.” §2000e–5(f )(1) (emphasis added).
All that leeway respecting how to seek voluntary compli-
ance and when to quit the effort is at odds with Mach
Mining’s bargaining checklist. Congress left to the EEOC
such strategic decisions as whether to make a bare-
minimum offer, to lay all its cards on the table, or to re-
spond to each of an employer’s counter-offers, however far
afield. So too Congress granted the EEOC 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. For a court to assess any of those
choices—as Mach Mining urges and many courts have
done, see n. 1, supra—is not to enforce the law Congress
wrote, but to impose extra procedural requirements. Such
judicial review extends too far.
Mach Mining’s brand of review would also flout Title
VII’s protection of the confidentiality of conciliation ef-
forts. The statute, recall, provides that “[n]othing said or
done during and as a part of such informal endeavors may
be made public by the Commission . . . or used as evidence
in a subsequent proceeding without the written consent of
the persons concerned”—both the employer and the com-
plainant. §2000e–5(b); see EEOC v. Associated Dry Goods
12 MACH MINING, LLC v. EEOC
Opinion of the Court
Corp., 449 U. S. 590, 598, and n. 13 (1981). But the judi-
cial inquiry Mach Mining proposes would necessitate the
disclosure and use of such information in a later Title VII
suit: How else could a court address an allegation that the
EEOC failed to comply with all the negotiating rules Mach
Mining espouses?2 The proof is in this very case: The
District Court held that it could not strike from the record
descriptions of the conciliation process because they spoke
to whether the EEOC had made a “sincere and reasonable
effort to negotiate.” App. to Pet. for Cert. 40a (internal
quotation marks omitted); see supra, at 3. The court thus
failed to give effect to the law’s non-disclosure provision.
And in so doing, the court undermined the conciliation
process itself, because confidentiality promotes candor in
discussions and thereby enhances the prospects for
agreement. As this Court has explained, “[t]he maximum
results from the voluntary approach will be achieved if ”
the parties know that statements they make cannot come
——————
2 Mach Mining tries to show that broad judicial review is compatible
with Title VII’s non-disclosure provision, but fails to do so. The com-
pany first contends that the statutory bar is limited to “using what was
said or done in a conciliation as evidence going to the merits of the
claims.” Brief for Petitioner 27 (emphasis added). But to make that
argument, Mach Mining must add many words to the text (those shown
here in italics). The actual language refers to “evidence in a subse-
quent proceeding,” without carving out evidence relating to non-merits
issues. 42 U. S. C. §2000e–5(b). And in any case, under Mach Mining’s
own view of Title VII, compliance with the conciliation mandate is a
merits issue, because it is a necessary “element of the [EEOC’s] claim,
which the [EEOC] must plead and prove.” Brief for Petitioner 9; see
id., at 31. Mach Mining therefore presents a back-up argument: “[T]he
confidentiality limitation should be deemed waived” when the employer
puts conciliation at issue. Id., at 30. But again, to effect a waiver Title
VII requires “the written consent of the persons concerned,” which
includes not just the employer but the complainant too. §2000e–5(b);
see supra, at 11. And the employer’s decision to contest the EEOC’s
conciliation efforts cannot waive, by “deem[ing]” or otherwise, the
employee’s statutory rights.
Cite as: 575 U. S. ____ (2015) 13
Opinion of the Court
back to haunt them in litigation. Associated Dry Goods
Corp., 449 U. S., at 599, n. 16 (quoting 110 Cong. Rec.
8193 (1964) (remarks of Sen. Dirksen)). And conversely,
the minimum results will be achieved if a party can hope
to use accounts of those discussions to derail or delay a
meritorious claim.
By contrast with these flawed proposals, the proper
scope of judicial review matches the terms of Title VII’s
conciliation provision, as we earlier described them. See
supra, at 7. The statute demands, once again, that the
EEOC communicate in some way (through “conference,
conciliation, and persuasion”) about an “alleged unlawful
employment practice” in an “endeavor” to achieve an
employer’s voluntary compliance. §2000e–5(b). That
means the EEOC must inform the employer about the
specific allegation, as the Commission typically does in a
letter announcing its determination of “reasonable cause.”
Ibid. Such notice properly describes both what the em-
ployer has done and which employees (or what class of
employees) have suffered as a result. And the EEOC must
try 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 prac-
tice. Judicial review of those requirements (and nothing
else) ensures that the Commission complies with the
statute. At the same time, that relatively barebones
review allows the EEOC to exercise all the expansive
discretion Title VII gives it to decide how to conduct concil-
iation efforts and when to end them. And such review can
occur consistent with the statute’s non-disclosure provi-
sion, because a court looks only to whether the EEOC
attempted to confer about a charge, and not to what hap-
pened (i.e., statements made or positions taken) during
those discussions.
A sworn affidavit from the EEOC stating that it has
performed the obligations noted above but that its efforts
14 MACH MINING, LLC v. EEOC
Opinion of the Court
have failed will usually suffice to show that it has met the
conciliation requirement. Cf. United States v. Clarke, 573
U. S. ___, ___ (2014) (slip op., at 6) (“[A]bsent contrary
evidence, the [agency] can satisfy [the relevant] standard
by submitting a simple affidavit from” the agency repre-
sentative involved). If, however, the employer provides
credible evidence of its own, in the form of an affidavit or
otherwise, indicating that the EEOC did not provide the
requisite information about the charge or attempt to
engage in a discussion about conciliating the claim, a court
must conduct the factfinding necessary to decide that
limited dispute. Cf. id., at ___–___ (slip op., at 6–7).
Should the court find in favor of the employer, the appro-
priate remedy is to order the EEOC to undertake the
mandated efforts to obtain voluntary compliance. See
§2000e–5(f )(1) (authorizing a stay of a Title VII action for
that purpose).
IV
Judicial review of administrative action is the norm in
our legal system, and nothing in Title VII withdraws the
courts’ authority to determine whether the EEOC has
fulfilled its duty to attempt conciliation of claims. But the
scope of that review is narrow, reflecting the abundant
discretion the law gives the EEOC to decide the kind and
extent of discussions appropriate in a given case. In ad-
dressing a claim like Mach Mining’s, courts may not im-
pinge on that latitude and on the Commission’s concomi-
tant responsibility to eliminate unlawful workplace
discrimination.
For the reasons stated, we vacate the judgment of the
Court of Appeals and remand the case for further proceed-
ings consistent with this opinion.
It is so ordered.