Supreme Court Docket Report - June 30, 2014

Today, the Supreme Court granted certiorari in two cases of interest to the business community:

Title VII—Affirmative Defenses—EEOC Conciliation Requirement Federal Appellate Jurisdiction—Finality Of Order Dismissing One Among Many Consolidated Cases Title VII—Affirmative Defenses—EEOC Conciliation Requirement

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). Today, the Supreme Court granted certiorari in Mach Mining v. Equal Employment Opportunity Commission, No. 13-1019, to decide whether and to what extent an employer may raise the EEOC's failure to engage in the statutory conciliation process as an affirmative defense to a lawsuit brought by the EEOC under Title VII.

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 these 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 these circuits, becoming "the first circuit to reject explicitly the implied affirmative defense of failure to conciliate." Id. at 181.

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. In holding that a failure-to-conciliate defense is unavailable to employers as a matter of law, the Seventh Circuit found it significant that the text of Title VII contains no express provision for an affirmative defense based on a defect in the EEOC's conciliation efforts. The court further reasoned that an implied affirmative defense for failure to conciliateand the corresponding need to submit evidence to the court...