In December 2013, in EEOC v. Mach Mining, LLC, the U.S. Court of Appeals for the Seventh Circuit became the first federal circuit to foreclose an employer's ability to use the implied affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to conciliate prior to bringing suit. The Seventh Circuit held that, based on the conciliation language in Title VII and Seventh Circuit precedent, the EEOC's approach to conciliation during the administrative charge process is not judicially reviewable and not an affirmative defense to be used against the agency.  The Seventh Circuit's holding is contrary to every other circuit that has evaluated this issue. 

On February 25, 2014, Mach Mining filed a Petition for a Writ of Certiorari to the U.S. Supreme Court requesting review of the following question: “Whether and to what extent may a court enforce the EEOC’s mandatory duty to conciliate discrimination claims before filing suit?”  In its Petition, Mach Mining asks the Supreme Court to resolve the circuit conflict over whether the EEOC’s conciliation efforts are judicially reviewable and to determine the proper standard of review.  Mach Mining argues the Seventh Circuit erred in determining the EEOC’s conciliation efforts are not judicially reviewable.  Title VII requires the EEOC to engage in conciliation efforts before filing a lawsuit, and there is nothing in the language of the statute requiring courts to accept the EEOC’s representation that it met its conciliation prerequisite.  Further, Mach Mining points out that extensive case law from other jurisdictions supports the importance of judicial review of the EEOC’s conciliation efforts to ensure employers are presented with a fair opportunity to settle cases before the EEOC files litigation. 

The Retail Litigation Center, U.S. Chamber of Commerce, and National Federation of Independent Businesses are interested amici curiae in this case, as they represent businesses across the United States.  The amici filed a brief in support of Mach Mining’s Petition for a Writ of Certiorari, raising two main arguments.  First, the amici argues that contrary to the Seventh Circuit’s belief that eliminating judicial review of the conciliation duty would promote conciliation, the opposite is true.  Based on its history, the EEOC too often “bypasses meaningful conciliation, preferring to sue first and negotiate later,” which is contrary to the litigation prerequisites set forth in Title VII.  Pre-suit conciliation provides the best chance for settlement because employers generally prefer to avoid public litigation.  Therefore, the amici argues the Seventh Circuit misunderstood the real incentives of both the EEOC and of employers.  Second, the amici argues the Seventh Circuit’s decision is legally unsupportable because it offers blind trust to the EEOC with no oversight.  In fact, Congress rejected a bill that expressly made conciliation nonreviewable.  Additionally, the amici contends the Seventh Circuit’s belief that no judicially manageable standard of review exists ignores numerous other contexts in which courts conduct “good faith” inquiries, and there is no reason courts could not use this standard in reviewing the EEOC’s conciliation efforts.      

In response to the Petition, the EEOC agreed with Mach Mining that the Supreme Court should consider what it calls a “purely legal question,” as the circuit court split is unlikely to be resolved without the Court’s intervention.  The EEOC further concurred that review of the Seventh Circuit’s decision is necessary to guide both the EEOC and employers.  

The Supreme Court granted certiori of the case, which will be decided next term.  This case will be one for employers to watch next term, as whatever conclusion the Court reaches will impact future EEOC enforcement policy.