Supreme Court Decision Alert - April 29, 2015

Yesterday, the Supreme Court issued one decision, described below, of interest to the business community.

Title VII—Affirmative Defenses—EEOC Conciliation Requirement

Mach Mining, LLC v. Equal Employment Opportunity Commission, No. 13–1019

Title VII of the Civil Rights Act of 1964 requires the Equal Employment Opportunity Commission to try to negotiate an end to an employer's unlawful employment practices before suing the employer. See 42 U.S.C. § 2000e-5(b), (f). Title VII also requires that anything said or done during conciliation be kept confidential. See 42 U.S.C. § 2000e-5(b). Today, in Mach Mining, LLC v. Equal Employment Opportunity Commission, No. 13-1019, the Supreme Court held that courts have a duty to review whether the EEOC has fulfilled its obligation to attempt conciliation but that the scope of review is narrow, focusing solely on whether EEOC complied with its statutory obligation without probing deeply into the substance of the conciliation efforts.

In this case, the EEOC sued petitioner Mach Mining, LLC, for sex discrimination in hiring. Mach Mining raised as an affirmative defense that the EEOC had failed to fulfill in good faith its statutory obligation to conciliate before filing the lawsuit. The EEOC subsequently moved for partial summary judgment on the failure-to-conciliate defense, arguing that the conciliation process is not subject to judicial review. The district court denied the motion, but the Seventh Circuit reversed.

Prior to the decision below, every circuit to have considered the issue had held that an employer may raise the EEOC's failure to conciliate as an affirmative defense, but those courts had adopted varying standards for evaluating the EEOC's conciliation efforts. For example, the Second, Fifth, and Eleventh Circuits had directed lower courts to apply a searching three-part inquiry, while the Fourth, Sixth, and Tenth Circuits had adopted a more deferential "good faith" standard. In its decision in this case (738 F.3d 171), the Seventh Circuit expressly parted ways with all of those circuits, becoming "the first circuit to reject explicitly the implied affirmative defense of failure to conciliate" (id. at 181).

A unanimous Supreme Court vacated the Seventh Circuit's judgment. In an opinion written by Justice Kagan, the Court explained that there is "a strong presumption favoring judicial review of administrative action" that can be overcome only "when a statute's language or structure demonstrates...

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