Seventh Circuit Holds that EEOC’s Failure to Conciliate is not an Affirmative Defense

On December 20, 2013, the U.S. Court of Appeals for the Seventh Circuit decided in the EEOC v. Mach Mining, LLC case, that employers couldn’t use the implied affirmative defence that the Equal Employment Opportunity Commission (EEOC) failed to make efforts to use conciliation to resolve the matter prior to bringing a lawsuit. As a consequence, Courts cannot review the EEOC efforts to conciliate a matter prior to litigation.

The lawsuit brought by the EEOC against Mach Mining, LLC, addressed the Defendant’s alleged violations of Title VII following its failure to hire female applicants because of their sex, since beginning operations in 2006, despite having received applications from many highly qualified women. Mach Mining chose to defend by raising an affirmative defence that the EEOC failed to undertake reasonable efforts to negotiate a pre-lawsuit resolution.

The issue at hand was whether an alleged failure to conciliate could be reviewed by a court of law in the form of an implied affirmative defence to an EEOC suit. Title VII directs the EEOC to make efforts to conciliate matters brought to its attention before litigating them and states that the Commission should: “endeavor to eliminate” discriminatory practices “by informal methods of conference, conciliation, and persuasion.” However, the Seventh Circuit Court decided that the language of Title VII did not go as far as creating an affirmative defence based on alleged failure to make efforts to conciliate a matter the statute allows the Commission to sue the employer for discrimination if it “has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.”

The Court held that: “Finding an implied failure to conciliate defence in Title VII added an unwarranted means for employers to avoid liability for unlawful discrimination by protracted litigation over whether the EEOC tried hard enough to settle” and added that: “an implied affirmative defence was contrary to Title VII’s prohibition on using what was said and done during the conciliation process as evidence in a subsequent proceeding.”

The Seventh Appellate Court recognized that it was “the first circuit to reject explicitly the implied defence of failure to conciliate,” and that it was proceeding “as if we are creating a circuit split.” Indeed, other federal district and appellate courts criticized the EEOC for engaging in “shoot first, ask questions later” litigation tactics that result in cases of questionable merit being filed in federal court. It was also decided that the EEOC’s alleged conciliation efforts were a legitimate subject of judicial review.

Now that there is a split between federal courts on that matter, the U.S. Supreme Court might be the one to ultimately resolve this split. Besides, it is still possible for employers to assert a failure-to-conciliate defence in courts other than the Seventh Circuit.

If you are an employee and you believe you are a victim of employment discrimination based on your gender, please contact The Harman Firm, LLP.