While the 2013-2014 U.S. Supreme Court term may be over, the justices have granted certiorari in two major employment cases slated for the fall. First, the Court will review the Seventh U.S. Circuit Court of Appeals’ decision in EEOC v. Mach Mining, where a three-judge panel held that an employer may not escape a suit filed by the Equal Employment Opportunity Commission (EEOC) by arguing the agency failed to conciliate. The decision broadened a split among the other federal appellate courts (the Second, Fifth, and Eleventh Circuits conduct a three-part review of the conciliation process while the Fourth, Sixth, and Tenth Circuits ask whether the EEOC’s efforts met a minimal level of good faith). In the second case, the justices will consider whether – and to what extent – an employer must provide pregnant employees with work accommodations pursuant to the Pregnancy Discrimination Act (PDA). The Fourth U.S. Circuit Court of Appeals held in Young v. UPS that employers are not required under the PDA to provide pregnant employees with light duty assignments as long as the employer treats pregnant employees the same as non-pregnant employees with respect to offering accommodations. The Young panel reached the opposite conclusion from the Sixth Circuit, creating a split among the federal appellate courts.

Detailed Discussion

In Mach Mining, the Seventh Circuit struck out from its sister circuits to reject an employer’s “failure to conciliate” defense. The case involved a 2008 charge of sex discrimination filed by a female employee of the Illinois-based coal mining company. She claimed that Mach Mining refused multiple applications for coal mining jobs because she was a woman.

The agency investigated and found reasonable cause to believe the company had discriminated against a class of female job applicants. The EEOC then notified the parties of its intent to begin the conciliation process. Although the parties discussed possible resolution, they failed to reach an agreement. In September 2011, the agency informed Mach Mining that it had determined the conciliation process had been unsuccessful and filed suit two weeks later.

Mach Mining responded to the complaint with a motion to dismiss, arguing that the EEOC failed to conciliate in good faith. The agency moved for summary judgment on the ground that failure to conciliate does not provide an affirmative defense to an unlawful discrimination lawsuit.

The Seventh Circuit agreed

“[T]he statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII,” the panel wrote. The court based its conclusion on the language of Title VII, which does not include even an “outline” for a judicial standard of review, adding that judicial review of the conciliation process could undermine the EEOC’s efforts to enforce the law.

The U.S. Supreme Court granted certiorari on June 30 to hear the case in the fall, agreeing to answer the question: “[w]hether and to what extent may a court enforce the EEOC’s mandatory duty to conciliate discrimination claims before filing suit?”

In a second major employment case, the justices will review a 4th Circuit opinion in a case brought by a part-time driver for UPS. Jeannette Young submitted a doctor’s note that she could not lift more than 20 pounds due to her pregnancy and asked for a light duty accommodation. Citing a company policy not to offer light duty assignments to employees – male or female – because of medical conditions unrelated to work injury, the shipping company refused.

Young sued, arguing that the employer had a duty to accommodate her request under the Pregnancy Discrimination Act, but a federal court in Maryland and the Fourth Circuit both sided with the employer. UPS’s policy was lawful under the statute because “where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA,” the federal appellate panel wrote.

With a contrary holding from the 6th Circuit, the decision created a split in the federal appellate courts.

The justices agreed to answer “[w]hether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’”

To read the Seventh Circuit’s decision in EEOC v. Mach Mining, click here.

To read the 4th Circuit’s decision in Young v. UPS, click here.