In January, in Mach Mining, LLC v. E.E.O.C., the Supreme Court determined that courts do have the power to review whether or not the Equal Employment Opportunity Commission (EEOC) has “satisfied its statutory obligation to attempt conciliation before filing suit.” 135 S. Ct. 1645, 1649 (2015). The Court further stated that “the scope of that review is narrow” and that the EEOC retains “extensive discretion to determine the kind and amount of communication with an employer appropriate in any given case.” Id.

Questions remain, however, about the scope of permissible review and the EEOC’s degree of discretion. Just this past week, the parties in Mach Mining filed briefs with the Seventh Circuit Court of Appeals attempting to persuade the Seventh Circuit what course the litigation should take. The EEOC quoted extensively from the Supreme Court ruling to support its position that it had complied with its statutory requirements and asked the Seventh Circuit to grant its request for partial summary judgment on Mach Mining’s failure-to-conciliate affirmative defense. Mach Mining, on the other hand, requested that the Seventh Circuit remand the matter so that the district court could engage in fact finding to determine if the EEOC had indeed met its statutory obligations.