Supreme Court Agrees to Resolve Circuit Split On EEOC’s Authority to Sue After Little or No Attempt at Conciliation

On June 30, 2014, the United States Supreme Court granted certiorari, agreeing to review the Seventh Circuit ruling in EEOC v. Mach Mining. In its decision the Appeals Court clearly acknowledged its departure from all of the various legal standards that have been applied by other courts, and thus intentionally brought to a head the already-existing appellate split on the central question of the case: whether, or how vigorously, the EEOC is required to pursue conciliation before suing in Title VII discrimination cases.

In its complaint in the original case, the EEOC alleged that Mach Mining. LLC violated Title VII of the Civil Rights Act of 1964, and Title I of the Civil Rights Act of 1991, by maintaining (i) a policy and practice of not hiring women for mining positions, and/or (ii) a facially neutral hiring policy that had a disparate impact of women applicants. Specifically, in addition to refusing to hire female applicants, the company maintained the policy of hiring only applicants who had been recommended by current employees. Thus, they claimed, Mach Mining deprived complainant Brooke Petkas and a class of female applicants employment opportunities because of their sex.

The District Court for Southern Illinois granted summary judgment to the defense based on its affirmative defense that the EEOC had not fulfilled its duty under U.S. Code to “…endeavor to eliminate any (such) alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Thus, the defense argued, and the Court ultimately agreed, the EEOC hadn’t met its legal obligation to attempt conciliation prior to commencing litigation. In its decision, the Court acknowledged a “circuit split as to the scope of inquiry a court may make into the EEOC’s statutory conciliation obligation,” leaving unresolved the question of whether a court can review the EEOC’s efforts at conciliation to determine whether it has met the requirement. Some circuits have employed a “deferential standard,” deferring to the EEOC’s authority to determine when, or how much, conciliation is appropriate in each case, while other circuits have employed a “heightened scrutiny standard” under which the courts require the EEOC to meet several conditions before filing suit.

Reversing the District Court’s grant of summary judgment, the Seventh Circuit simply rejected the EEOC’s failure-to-conciliate argument as an affirmative defense. The Court’s conclusion was based on several considerations, most notably: 1) that allowing this kind of affirmative defense has little potential benefit, but encourages defendants in employment discrimination cases to avoid accountability for discrimination by engaging in “protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle,” 2) that a failure-to-conciliate defense cannot be made consistent with the “statutory prohibition on using what was said and done during the conciliation process as evidence in a subsequent proceeding.” That is, the Court concluded that it would be impossible to determine that the EEOC had not done enough without investigating what it did, which the statutes clearly proscribe. Finally, the Court questioned whether, when the EEOC fails to meet its obligation to attempt conciliation, the appropriate remedy imposed by a court should be dismissing the whole case, as opposed to ordering the parties to resume the process of conciliation. “…the Supreme Court has made clear,” the judges write, “that, as a general rule, the remedy for a deficiency in a process is more process, not letting one party off the hook entirely.”

Needless to say, the Supreme Court’s decision in this case will affect the way employment discrimination claims are litigated across the country.

If you are an employee and you believe you have been subject to gender discrimination, please contact The Harman Firm, LLP.