A decision by the U.S. Supreme Court on whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s (EEOC) mandatory duty to conciliate discrimination claims before filing suit could significantly change the landscape of EEOC litigation for employers. The court will hear the case during its 2014–2015 term, and its decision has the potential to prevent federal courts from reviewing pre-suit conciliation efforts. This would, in effect, allow the EEOC to proceed unchecked with respect to conciliation. It could also result in less productive conciliation and increased litigation for employers. More importantly, such an outcome would deprive employers of any meaningful recourse in the event that the EEOC’s conciliation efforts are not made in good faith.

The case stems from a charge of discrimination that was filed with the EEOC in early 2008, after a woman was purportedly denied employment by Mach Mining for a coal mining position based on her gender. Following its investigation, the EEOC determined it had reasonable cause to believe that the company had discriminated against a class of female applicants and notified Mach Mining of its intention to begin informal conciliation. After some discussions regarding possible resolutions, the parties ultimately were unable to reach an agreement. The EEOC therefore advised the company that it had determined future efforts at conciliation would be futile and subsequently filed a complaint in the district court.

As an affirmative defense, Mach Mining asserted that the district court should dismiss the suit due to the EEOC’s failure to conciliate in good faith. The EEOC moved for partial summary judgment on the issue of whether as a matter of law an alleged failure to conciliate is an affirmative defense to a suit for unlawful discrimination. The district court denied the motion but certified the issue for interlocutory appeal.

On appeal, the Seventh Circuit reversed the district court’s denial of summary judgment, holding that the statutory directive in Title VII requiring the EEOC to negotiate prior to filing suit did not create an implied affirmative defense for failure to conciliate. The court reasoned that there was no meaningful standard for courts to employ in reviewing the sufficiency of the conciliation process. Additionally, the court held that finding an implied affirmative defense in Title VII would provide employers with an unwarranted means to avoid liability for unlawful discrimination.

The decision was the first by a circuit court to explicitly reject the implied affirmative defense of failure to conciliate. The result only further complicated an existing circuit split over the level of scrutiny to apply in reviewing conciliation. At the time of the Seventh Circuit’s decision the Second, Fifth, and Eleventh Circuits employed a searching three-party inquiry in evaluating  conciliation, while the Fourth, Sixth, and Tenth Circuits required that the EEOC’s conciliation efforts meet a minimum level of good faith.

We will continue to monitor this complex case. If you have any questions about how this upcoming decision could impact your business, please contact:

• Jennifer M. Mannion (267.519.6824; jmannion@goldbergsegalla.com)
• Caroline J. Berdzik (609.986.1314; cberdzik@goldbergsegalla.com)
• Or another member of the Goldberg Segalla Employment and Labor Practice Group.