Question of Whether EEOC Must Make a Good Faith Effort to Conciliate Will Go to Supreme Court

Title VII of the Civil Rights Act of 1964 requires employees to file a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC must make an effort to resolve the dispute with the employer before it may file suit on behalf of the complainant, or authorize the complainant to do so directly. 42 U.S.C. § 2000e-5(b), (f). Federal circuit courts of appeals have reached different decisions regarding whether a defendant may raise “failure to conciliate” as an affirmative defense. The Supreme Court granted certiorari to a case that rejected an employer’s attempt to assert this defense, and it will hear the matter during the October 2014 session. EEOC v. Mach Mining, LLC (Mach I), No. 11-cv-879, mem. order (S.D. Ill., Jan. 28, 2013); rev’d EEOC v. Mach Mining, LLC (Mach II), 738 F.3d 171 (7th Cir. 2013); cert. granted Mach Mining v. LLC (Mach III), No. 13-1019 (Sup. Ct., Jun. 30, 2014).

The EEOC filed suit for alleged sex discrimination against Mach Mining, on behalf of the complainant and a class of female job applicants. The lawsuit alleged that the company “had never hired a single female for a mining-related position” and “did not even have a women’s bathroom on its mining premises.” Mach I, mem. order at 1. It further claimed that the company’s policy of hiring new employees based on referrals from current employees caused a disparate impact on women in violation of Title VII. The EEOC filed a motion for summary judgment on the defendant’s affirmative defense, which claimed that the EEOC had failed to make a good-faith effort at conciliation before filing suit.

The district court noted that several federal circuit courts of appeal had ruled that Title VII allows appellate courts to review the EEOC’s efforts at conciliation. The usual remedy for failure to conciliate would be to stay the proceedings for further conciliation. The Seventh Circuit had not considered the issue at that time. New York courts are bound by cases like EEOC v. Sears, Roebuck & Co., 650 F.2d 14, 18-19 (2nd Cir. 1981). The Third Circuit Court of Appeals, which includes New Jersey, has not ruled on the issue.

While the Seventh Circuit had not ruled on the specific issue of “failure to conciliate,” the EEOC argued that another ruling, EEOC v. Caterpillar, 409 F.3d 831 (7th Cir. 2005), applied to the case. The Caterpillar court held that the scope of the EEOC’s investigation, in comparison to the scope of its lawsuit, is not subject to court review. The EEOC claimed that Caterpillar similarly prevented the district court from reviewing its conciliation efforts. The district court disagreed and denied the motion for summary judgment, finding that “Caterpillar does not preclude at least some level of judicial review of the EEOC’s conciliation process.” Mach I, mem. order at 7.

The Seventh Circuit reversed the district court, holding that Title VII’s “statutory directive…to negotiate first and sue later does not implicitly create a defense” for failure to conciliate. Mach II, 738 F.3d at 172-73. The court acknowledged that its ruling was in direct contradiction of other circuits’ rulings. The defendant appealed, and the case will now go to the Supreme Court.

If you need to speak to an employment attorney in New Jersey or New York regarding a discrimination claim or another employment law matter, please contact the Resnick Law Group today at 973-781-1204 or (646) 867-7997.

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