Putting it at odds with other circuit courts, the Seventh Circuit explicitly rejected the affirmative defense to a Title VII lawsuit that the Equal Employment Opportunity Commission (EEOC) failed in good faith to engage in conciliation prior to filing suit. EEOC v. Mach Mining, LLC, No. 13-2456 (7th Cir. Dec. 20, 2013). In other circuits, if the EEOC brings a lawsuit based on a discrimination charge against an employer, the employer can obtain dismissal of the lawsuit if the EEOC fails to make a good faith effort to conciliate or negotiate a settlement between the employer and employee prior to filing suit. However, in EEOC v. Mach Mining LLC, the Seventh Circuit found that the text of Title VII does not create “an affirmative defense based on an alleged defect in the EEOC’s conciliation efforts.”

The Mach Mining conflict began when an employment applicant filed a discrimination charge with the EEOC, alleging Mach Mining denied a number of her applications for a coal mining job because of her gender. The EEOC investigated the charge and found reasonable cause to believe Mach Mining discriminated against a class of female applicants. The conciliation process began in late 2010, and the parties discussed potential resolution but never reached an agreement. The EEOC then filed its lawsuit in September 2011, after informing Mach Mining that it had determined the conciliation process had been unsuccessful and further efforts would be futile.

The court reviewed the EEOC’s statutory duty before it may bring a lawsuit. First, the EEOC must conduct an investigation to determine if there is reasonable cause to believe the employee’s charge of discrimination is true. Second, if it finds reasonable cause, “the Commission [the EEOC] shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). Third, the EEOC may sue, but only after it “has been unable to secure from the respondent a conciliation agreement acceptable by the Commission.” 42 U.S.C. § 2000e-5(f). The only time limit on the EEOC’s ability to sue is that it cannot do so within the first 30 days after receiving the original charge. Id. Other circuit courts have interpreted this process as creating an affirmative duty for the EEOC to mediate and attempt to settle the dispute before proceeding to court. The Seventh Circuit, however, in rejecting an employer’s right to defend against a suit filed by the EEOC on this basis, found that the reason employers more frequently use this defense is to slow litigation and avoid liability for unlawful discrimination.

The court next discussed the confidentiality provision of Title VII, which states that nothing said or done during the conciliation process may be made public or used as evidence in a subsequent proceeding. The court decided this provision directly contradicted the implied existence of an affirmative defense for failure to conciliate because such a defense would require the parties to divulge details of the conciliation process. Additionally, the court found that Title VII’s lack of described standards for reviewing the EEOC’s conciliation process also contradicts an affirmative defense for failure to conciliate.

The Second, Fifth and Eleventh Circuits allow an employer to defend against a Title VII lawsuit filed by the EEOC based upon a failure to conciliate in good faith, engaging in a searching three-part inquiry. This test asks whether the EEOC (1) outlined to the employer its cause for believing Title VII has been violated, (2) gave the employer a chance to comply voluntarily and (3) responded in a reasonable and flexible manner to the reasonable attitudes of the employer. The Fourth, Sixth and Tenth Circuits require that the EEOC’s efforts to conciliate meet a minimal level of good faith. Based on the Seventh Circuit’s ruling, employers in its jurisdiction should respond to a discrimination charge filed with the EEOC knowing that they may not defend against a Title VII suit filed by the EEOC in court on the basis that the EEOC did not attempt to conciliate in good faith before bringing suit.