On June 28, 2013, the U.S. Court of Appeals for the Seventh Circuit granted the EEOC’s petition for an interlocutory appeal of a district court’s decision and order holding that the Commission’s conciliation efforts are subject to, at least, some judicial review.  In re Equal Employment Opportunity Commission (EEOC v. Mach Mining, LLC), No. 13-8012 (June 28, 2013).  The EEOC adamantly maintains that its conciliation obligations, like its reasonable charge determinations, are not justiciable.

In September 2011, the EEOC filed a Title VII and Title I sex discrimination action against Mach Mining accusing the mining operations company of, inter alia, maintaining, since at least January 1, 2006, ”a policy or practice of not hiring women for mining and related positions, or, in the alternative, had a neutral hiring policy which had a disparate impact on women applicants for mining and related positions.”  According to the EEOC, Mach Mining “ha[d] never hired a single female for a mining-related position,” and “did not even have a women’s bathroom on its mining premises.”  In November 2011, Mach Mining answered the complaint by asserting 17 affirmative defenses which included asking for dismissal on the ground that the EEOC “failed to fulfill all conditions precedent before filing suit, including but not limited to, conciliating in good faith the allegations at issue.”

In May 2012, the EEOC moved the U.S. District Court for the Southern District of Illinois to deem the confidential nature of the presuit conciliation process waived for purposes of litigation arguing that Mach Mining had waived such confidentiality by alleging the affirmative defense that the Commission failed to conciliate in good faith.  Mach Mining argued that it had not waived its confidentiality of the conciliation process because it had not consented in writing to such a waiver as required by 42 U.S.C. § 2000e-5(b).  The district court agreed with Mach Mining and held that allegations of a failure to conciliate defense in a pleading response to a complaint does not, by itself, constitute written consent of the parties as required by § 2000e-5(b).  EEOC v. Mach Mining, LLC, 2012 U.S. Dist. LEXIS 96844 (S.D. Ill. July 13, 2012).

Later in May 2012, the EEOC moved for summary judgment on Mach Mining’s failure to conciliate defense and moved to strike a section of Mach Mining’s memorandum in opposition which, the Commission argued, unlawfully referenced the confidential conciliation process.  The EEOC argued that the conciliation process was not subject to judicial review citing in support the Seventh Circuit’s decision in EEOC v. Caterpillar, Inc., 409 F.3d 831 (7th Cir. 2005).  The district court disagreed with the EEOC’s reading of Caterpillar and held that the issue on whether the EEOC conciliated in good faith was entitled to, at least, some level of judicial review.  EEOC v. Mach Mining, LLC, 2013 U.S. Dist. LEXIS 10859 (S.D. Ill. Jan. 28, 2013).  The court acknowledged a circuit split as to the scope of inquiry a court may make into the EEOC’s statutory conciliation obligation.  The Fourth, Sixth and Tenth Circuits employed a deferential standard while the Fifth and Eleventh Circuits used a heightened scrutiny standard, the court noted.  The Seventh Circuit had not weighed in on the issue; however, the court noted that the district courts within the Seventh Circuit all had concluded that the EEOC’s conciliation process was subject to some level of judicial review.

The EEOC later moved the district court to reconsider its previous order or, in the alternative, to certify for appeal the court’s previous order denying the EEOC’s motion for partial summary judgment.  The district court denied the Commission’s motion to reconsider but concluded that the EEOC had established the four statutory criteria for appellate certification.  EEOC v. Mach Mining, LLC, 2013 U.S. Dist. LEXIS 71172 (S.D. Ill. May 20, 2013).  The district court certified the following questions for appeal: (1) whether courts may review the EEOC’s informal efforts to secure a conciliation agreement acceptable to the EEOC before filing suit and (2) if so, should the reviewing court apply a deferential or heightened scrutiny standard of review?  On June 28, 2013, the Seventh Circuit granted the EEOC’s petition for leave to appeal and agreed to hear these issues.

The resolution of whether the EEOC’s conciliation process is justiciable and, if so, whether a deferential or heightened standard of review should be applied when evaluating the Commission’s efforts to conciliate will have tremendous ramifications for employers doing battle against the EEOC not only in the Seventh Circuit, but nationwide.  The EEOC continues to maintain that, like its reasonable cause determinations, its conciliation efforts are not subject to judicial review.  An EEOC victory before the Seventh Circuit on this issue (a worrisome proposition for employers) would give the Commission carte blanche to engage in questionable presuit tactics.  We will continue to monitor this case as it works its way through briefing, oral argument, and ultimately a decision by the Seventh Circuit.