throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2014
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`
`Syllabus
`
`1
`
` 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
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` 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
`
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`

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`2
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`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
`
`
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`

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`3
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` Cite as: 575 U. S. ____ (2015)
`
`
`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.
`
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`

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` Cite as: 575 U. S. ____ (2015)
`
`Opinion of the Court
`
`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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`
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` preliminary print of the United States Reports. Readers are requested to
`
`
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`noti y the Reporter of Decisions, Supreme Court of the United States, Wash-
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`
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`ington, D. C. 20543, of any typographical or other formal errors, in order
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`
`
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`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
`
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`

`
`2
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`
`
`
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`
`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
`
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`

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` Cite as: 575 U. S. ____ (2015)
`
`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
`
`
`
`
`
`3
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`
`
`

`
`4
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`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-
`——————
`
` 1See, 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”).
`
`
`
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`

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` Cite as: 575 U. S. ____ (2015)
`
`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
`
`
`
`
`
`
`
`5
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`

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`6
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`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
`
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`

`
`7
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` Cite as: 575 U. S. ____ (2015)
`
`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
`
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`
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`

`
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`
`8
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`
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`
`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
`
`
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`

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`9
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` Cite as: 575 U. S. ____ (2015)
`
`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
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`MACH MINING, LLC v. EEOC
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`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-
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` 11
`
`
`
`
`
`
`
`
`
`
`
`
`
` Cite as: 575 U. S. ____ (2015)
`
`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
`
`
`
`
`
`
`
`——————
` 2Mach 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)
`
`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 Ti

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