The Supreme Court in Mach Mining confirmed what EEOC has been saying all along, namely, that the courts can’t involve themselves in the conciliation process. The Supreme Court did say that EEOC does indeed have to inform employers about the specific wrongdoing it has found and which employees suffered from the wrongdoing, and then try to engage the employer in a discussion to give the employer a chance to fix the problem. However, the sole remedy for EEOC’s failure to comply is to stay the proceeding and require EEOC to conciliate. So it will work similarly to a court ordering the parties to mediate before trial.

This makes perfect sense, since there is absolutely no realistic way for a court to decide if one party is being unreasonable in a settlement discussion. While EEOC has to try to get the employer to voluntarily comply with the law, the courts are not going to tell it how to accomplish that. Employers are calling it a “win,” but it’s mostly a big ball of nothing.

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