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Employers may not Challenge Adequacy of EEOC Conciliation

In an opinion issued on December 20, 2013, the Seventh Circuit held that an employer may not raise in litigation an implied affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to adequately conciliate a case before filing a lawsuit alleging violations of Title VII of the Civil Rights Act of 1964. In a departure from previous opinions issued by other courts of appeals, the Seventh Circuit reached its decision based upon the “language of [Title VII], the lack of a meaningful standard for courts to apply, and the overall statutory scheme.”

The question was presented to the court after the EEOC filed suit against Mach Mining alleging that the company engaged in gender discrimination in violation of Title VII. In responding to the lawsuit, the Company alleged as an affirmative defense that the EEOC did not conciliate in good faith prior to bringing suit. After the district court accepted the employer’s position and denied the EEOC’s partial motion for summary judgment on the issue, the EEOC filed an interlocutory appeal to the Seventh Circuit.

In reversing the district court’s order denying the EEOC’s motion, the Seventh Circuit noted that the question of whether the EEOC meaningfully participated in conciliation does not bear on the merits of the case, and that the statute itself leaves conciliation efforts to the sole discretion of the EEOC.   The court also relied upon an earlier decision in EEOC v. Caterpillar, where it ruled that courts may not review the EEOC’s decision of whether there is a proper basis to bring suit against an employer.