Seventh Circuit Determines EEOC Conciliation Process Is Not Reviewable

Charles W. Miller & Associates

The Seventh Circuit Court of Appeals recently became the first federal Court of Appeal to deny employers an affirmative defense that they have often used in lawsuits involving the Equal Employment Opportunity Commission (EEOC): the EEOC failed to conciliate prior to the lawsuit. In EEOC v. Mach Mining, LLC, a case discussed a few months ago on this blog, female applicants to a mine located in Johnston City, Illinois claimed that they had not been hired solely because of their gender. They filed a charge of discrimination with the EEOC in 2008, and in late 2010, the EEOC informed Mach Mining that it intended to start the informal conciliation process. The parties discussed a resolution but failed to make an agreement. The EEOC later told Mach Mining that the conciliation process had been unsuccessful, and proceeded to file a complaint in district court two weeks later. In Mach Mining’s answer, it cited several affirmative defenses, including that the EEOC failed to conciliate in good faith. The EEOC sought summary judgment on the matter, claiming that the conciliation process was not subject to judicial review. The district court denied summary judgment, claiming that conciliation efforts are subject to some level of judicial scrutiny, at least to see whether good faith efforts were made. The EEOC then appealed its case to the Seventh Circuit.

The Seventh Circuit ultimately reversed the district court’s summary judgment ruling. In doing so, the court looked at the following: whether language in Title VII allowed EEOC conciliation efforts to be reviewable; whether a statutory standard for the conciliation process existed; whether judicial review would undermine the conciliation process; and whether it was proper for employers to shift the focus from their actions to the pre-litigation practices of the EEOC.

The court determined that the language in Title VII did not permit the conciliation process to be reviewable, but rather stated that conciliation was at the EEOC’s discretion and was confidential. Second, the Seventh Circuit noted that there was no statutory standard for determining whether conciliation was done in good faith and that determining it on a case-by-case basis would still require having a standard to apply. Congress did not provide any language that would create such a standard. Third, the Seventh Circuit rejected Mach Mining’s claims that lack of judicial review would harm the conciliation process, noting that conciliation as an option did not exist to benefit employers. Fourth, the Seventh Circuit asserted that employers focused on the EEOC’s pre-litigation efforts improperly shifted focus from their actions, which were the cause of the EEOC complaint.

Finally, the Seventh Circuit noted that it was the first court to reject the affirmative defense of failure to conciliate and that doing so could lead to a circuit split. That being the case, the split will likely be resolved in the near future by the Supreme Court. In the meantime, employees in Indiana and other states within the Seventh Circuit can feel assured that their case will not be threatened by employers’ claims that the EEOC failed to follow every procedure as well as it should have. If you live in Indiana and believe that you have been discriminated against in your workplace, contact an Indiana employment discrimination attorney today.

Charles W. Miller & Associates is a plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. Contact us today for a free consultation.

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