However this review is narrow, enforcing only the EEOC's statutory obligation under 42 U.S.C. § 2000e-5(b) to give the employer notice and an opportunity to achieve voluntary compliance.
The EEOC has extensive discretion under Title VII to determine what kind and amount of communication with an employer is appropriate in any given case. Thus, the Court made held: "A sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement."
However, should the obligation not be met, the remedy is not dismissal, but remand to the EEOC for further settlement efforts. "Should the court find in favor of the employer, the appropriate 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)."