Can an employer challenge whether the EEOC has done its job in defense of a case brought by the EEOC?  The U.S. Supreme Court has agreed to decide that question.  The issue is whether courts have authority to review whether the Equal Employment Opportunity Commission (EEOC) properly engaged in efforts to “conciliate” a case prior to bringing a lawsuit under Title VII of the 1964 Civil Rights Act.  As savvy readers know, the EEOC has a statutory obligation, after finding “cause,” to attempt to negotiate a resolution of the discrimination charge prior to filing suit.

The Seventh Circuit Court of Appeals ruled in Mach Mining, LLC v. EEOC, that the EEOC’s conciliation efforts were not reviewable by the court.  The Seventh Circuit reasoned that Title VII commits the conciliation process to the EEOC’s broad discretion, and that the court lacked the authority to review the agency’s efforts.  The Seventh Circuit’s decision broke precedent with every other Court of Appeals to have considered the issue.  Specifically, in its petition for writ of certiorari, Mach Mining noted that the Seventh Circuit’s departure from the precedent set forth by the Second, Fourth, Fifth, Sixth, Eighth and Ninth Circuits, created an “intractable conflict” that only the Supreme Court could resolve.  The Supreme Court has agreed to review this ruling.  The case is scheduled to be heard during Supreme Court’s 2014-2015 term, which beings in October.

Why does this matter?  If an employer is facing a lawsuit from the EEOC, the Commission’s failure to conciliate in good faith could serve as an affirmative defense to a bias claim.  The upcoming decision also should create a uniform rule regarding conciliation that will end the EEOC’s practice of tailoring its settlement efforts to the legal jurisdiction where the matter arose.