Seventh Circuit Holds Failure To Conciliate Is Not A Defense Available To Employers In Litigation With The EEOC

In EEOC v. Mach Mining, LLC,1 the Seventh Circuit became the first federal circuit to foreclose an employer's ability to use the implied affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to conciliate prior to bringing suit. Under Title VII, after finding reasonable cause to believe a charge of discrimination has merit, the EEOC may sue only after it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."2 The court of appeals held that, based on the conciliation language in Title VII and Seventh Circuit precedent, the EEOC's approach to conciliation during the administrative charge process is not judicially reviewable and not an affirmative defense to be used against the agency. The Seventh Circuit's holding is contrary to every other circuit that has evaluated this issue.3

Procedural History

In 2011, the EEOC filed a lawsuit against Mach Mining, alleging that it had discriminated against women since 2006, specifically in relation to hiring practices. In response, Mach Mining denied the allegations and asserted the affirmative defense that the EEOC did not conciliate in good faith prior to bringing suit against the company. The EEOC moved for partial summary judgment on this affirmative defense and argued that, based on the Seventh Circuit's decision in EEOC v. Caterpillar, Inc.,4 the conciliation process was not subject to judicial review. The district court denied the EEOC's motion, relying on decisions from other circuits permitting an employer to challenge the EEOC's conciliation efforts, holding that "the EEOC's conciliation process is subject to at least some level of judicial review and that review would involve at least a cursory review of the parties' conciliation." Based on the importance of the issue, the district court certified an interlocutory appeal of the court's order to the Seventh Circuit.

The Seventh Circuit's Analysis

In reversing the district court's denial of summary judgment, the Seventh Circuit held that the "language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit."

In its ruling, the court of appeals focused on five considerations.

First, the court reviewed the statutory language of Title VII, which does not suggest that the EEOC's approach to conciliation is reviewable. The court noted the express statutory language made clear that conciliation efforts are left solely to the EEOC's discretion, and that the confidentiality provision governing the process, which provides for criminal penalties, conflicts with making that information reviewable by courts.

Second, the court determined that there is no statutory standard for review of the conciliation process, noting that other courts "applying a failure to...