In its 2014-2015 term, the Supreme Court will decide whether courts have the authority to review the Equal Employment Opportunity Commission’s (EEOC) conciliation efforts prior to bringing suit. This decision will bring much needed guidance to courts about whether failure to satisfactorily conciliate EEOC claims is a viable affirmative defense (a defense in which the defendant introduces evidence, which would negate liability, even if the defendant committed the alleged acts).
In most circuits, an employer may affirmatively defend itself against a lawsuit brought under Title VII if the EEOC has failed to properly engage in the conciliation process. However, each circuit has adopted different standards for evaluating whether the EEOC’s conciliation efforts are substantial with no clear legal standard triumphing.
However, the Seventh Circuit Court of Appeals ruled in Mach Mining v. Equal Employment Opportunity Commission that because there was no clear legal standard to review the EEOC’s conciliation efforts, the affirmative defense for failure to conciliate was unavailable for employers. The Supreme Court will review this decision in its upcoming term.
The EEOC is responsible for enforcing Title VII though investigation, settlement, and filing lawsuits for allegations of employment discrimination. But before the EEOC can file a lawsuit on behalf of an employee, it is obligated to make efforts to negotiate a resolution to the charge; this is the conciliation requirement. Only after the EEOC has found cause and has gone through a satisfactory effort to conciliate the charge can the EEOC file a suit.
If the Supreme Court rules in the employer’s favor the EEOC may be forced to implement a uniform nationwide conciliation policy, making a more clear and streamlined process. This decision would also give employers a bright line rule on how courts will evaluate the EEOC’s efforts. However, if the Court finds the EEOC’s conciliation efforts are not reviewable by a court, the EEOC’s discretion to conciliate as it sees fit will continue unchecked. Regardless of how the Court rules in the Mach Mining case, the verdict will be important to all employers defending against charges brought by the EEOC.
If you have any questions regarding the EEOC and conciliation requirements, please contact any of the attorneys at Royal LLP at (413) 586-2288.