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By: Amanda Cash
On December 20, 2013, in EEOC v. Mach Mining, LLC, — F.3d —-, 2013 WL 6698515 (7th Cir. 2013), the Seventh Circuit dealt a blow to employers seeking dismissal of Title VII discrimination suits filed by the EEOC based upon a “failure to conciliate” affirmative defense. In a unanimous decision, the Seventh Circuit found that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create an affirmative defense for employers seeking to challenge the adequacy of the EEOC’s conciliation efforts. In effect, this decision provides the EEOC with complete discretion on engaging in conciliation efforts before bringing suit against employers. For employers in the Seventh Circuit, this decision renders them without any meaningful recourse to challenge the EEOC’s conciliation efforts, even if it is clear the EEOC’s efforts were not taken in good faith.
Notably, the impact of this decision is unlikely to remain limited to employers in the Seventh Circuit. This decision marks the first Circuit to explicitly reject the affirmative defense of failure to conciliate. The Second, Fifth, and Eleventh Circuits currently evaluate the EEOC’s conciliation efforts under a three-part inquiry. The Fourth, Sixth, and Tenth Circuits require instead that the EEOC’s efforts meet a minimal level of good faith. With the Seventh Circuit creating a third approach to this issue, it appears possible that the Supreme Court will grant certiorari in this case to determine whether an affirmative defense of failure to conciliate is available to employers sued by the EEOC. Until such time, employers should anticipate that the EEOC will use the Mach Mining decision to fight employers challenging its conciliation efforts in all Circuits, not just the Seventh Circuit.