Whether the Equal Employment Opportunity Commission (“EEOC”) is engaging in proper conciliation efforts, prior to bringing a lawsuit, is an issue that many employers have grappled with when forced to the brink during pre-lawsuit negotiations. After the Seventh Circuit Court of Appeals (including Indiana, Illinois and Wisconsin) held, for the first time, that the EEOC’s pre-lawsuit conciliation efforts were not reviewable, the U.S. Supreme Court agreed to chime in on the issue.

EEOC v. Mach Mining LLC

In EEOC v. Mach Mining LLC, the EEOC alleged that the employer acted unlawfully by having a policy and practice of not hiring women for mining-type jobs. In the alternative, the EEOC alleged that even if the employer’s policies and practices were lawful on their face, the employer’s neutral hiring policy was nevertheless unlawful because it disparately impacted women. The EEOC claimed that conciliation to resolve this dispute was attempted but unsuccessful. In contrast, the employer claimed that the EEOC made only a verbal demand and then informed the employer that further conciliation efforts would be pointless. The EEOC filed a lawsuit against the employer just two weeks later. As part of its December 2013 decision, the court held that employers could not contest this practice and thus, not avoid liability in discrimination lawsuits by demonstrating the EEOC failed to act in good faith in accordance with its statutory duty to conciliate.

Why Does This Matter?

Prior to the ruling in Mach Mining, employers facing a lawsuit by the EEOC could avoid liability in discrimination claims by successfully showing that the EEOC failed to conciliate in good faith. TheMach Mining decision dramatically changes this course for employers stating that “an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.” Because the decision directly conflicts with other Circuit Courts that permit the EEOC’s failure to conciliate in good faith to be used as an affirmative defense, the U.S. Supreme Court agreed to review the case and resolve the conflict.

Therefore, the U.S. Supreme Court will decide the issue of “[w]hether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.” The case is scheduled to be heard during the U.S. Supreme Court’s 2014-2015 term, which beings this October. Hopefully, the U.S. Supreme Court’s upcoming decision will create a uniform rule for employers and will end the EEOC’s practice of altering its settlement efforts to coincide with the location (i.e., jurisdiction) of the dispute.