Seventh Circuit Rules that Employers Cannot Challenge EEOC Conciliation

Friday, December 27, 2013

In a decision endorsed by all its judges, the U.S. Court of Appeals for the Seventh Circuit decided that employers cannot challenge - and courts cannot review - the adequacy of the U.S. Equal Employment Opportunity Commission's (EEOC)  informal pre-litigation efforts to bring employers into compliance with federal anti-discrimination laws.  

According to the Court, Title VII of the Civil Rights Act of 1964 ("Title VII") conveys complete discretion to the Commission to engage in these "conciliation" efforts.  Therefore, the Seventh Circuit ruled, employers cannot seek to dismiss EEOC lawsuits by arguing that the Commission inadequately "conciliated" before filing its lawsuit.

The decision stems from the EEOC's lawsuit against Mach Mining, LLC, headquartered in Marion, Ill.  The Commission had sued Mach Mining in September 2011, alleging that the company violated Title VII by failing to hire any female miners since beginning operations in 2006, despite having received applications from many highly qualified women.

Mach Mining chose to defend against these allegations in part by criticizing the EEOC for inadequately conciliating the matter before suing.  The EEOC moved for partial summary judgment with respect to Mach Mining's so-called affirmative defense that the Commission had failed to properly conciliate before filing its complaint in court.  The district court denied the EEOC's motion for partial summary judgment, but allowed the EEOC to take an interlocutory appeal.

Title VII does require the EEOC to "endeavor to eliminate . . . alleged unlawful employment practice[s] by informal methods of conference, conciliation, and persuasion."  However, the statute also plainly allows the Commission to sue the employer for discrimination if it "has been unable to secure from the respondent a conciliation agreement acceptable to the Commission."  

The Appellate Court pointed to this clear statutory language in ruling that employers cannot seek to dismiss EEOC lawsuits by alleging the EEOC's conciliation efforts were lacking.  "It would be difficult for Congress to have packed more deference to agency decision-making into so few lines of text," the Seventh Circuit stated.  Also, the Court reasoned, the law provides absolutely no guidelines enabling courts to judge whether the Commission's conciliation attempts were adequate, stating that "we are not tempted to send district courts down such a dimly lighted path."

The Court also found that any "implied affirmative defense" for failure to conciliate would undermine the law enforcement goals of the anti-discrimination statutes.  It would "tempt employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court" - disputes which impose significant costs on both sides, as well as on courts.  Furthermore, if courts were empowered to dismiss EEOC lawsuits on this basis, the result would be that victims of discrimination would be left without a remedy - something Congress could not have intended.

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