In the coming months, the Supreme Court of the United States will determine the level of judicial review, if any, that will be applied to employers’ pre-litigation negotiations with the U.S. Equal Employment Opportunity Commission (EEOC) in discrimination cases. In Mach Mining, L.L.C. v. Equal Employment Opportunity Commission, the Court will consider language in Title VII requiring the EEOC to “endeavor to eliminate any . . . alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Specifically, the question is whether—and to what extent—courts may review the EEOC’s efforts to conciliate discrimination claims before the agency files suit against an employer. Employers argue that the EEOC’s failure to conciliate provides them with an affirmative defense to the merits of a discrimination suit.


The dispute stems from a 2008 discrimination charge filed with the EEOC against an employer. The EEOC investigated the charge and determined that there was reasonable cause to believe that discrimination had occurred. In 2010, the EEOC notified the employer that it intended to begin informal conciliation. The parties discussed a possible resolution, but were not able to reach an agreement. In 2011, the agency informed the employer that it had determined that the conciliation process had been unsuccessful and that further such efforts would be futile.

The EEOC then filed suit against the employer, which asserted as an affirmative defense that the EEOC had failed to conciliate in good faith. The affirmative defense, the employer argued, was grounded in section 2000e-5(b) of Title VII of the Civil Rights Act of 1964, which requires the EEOC to try to negotiate an end to an employer’s unlawful employment practices before seeking a judicial remedy. The employer sought a dismissal of the action, arguing that the agency had failed to honor its statutory duty to engage in good-faith conciliation before filing suit.

The EEOC moved for summary judgment arguing that its alleged failure to conciliate was not an affirmative defense to the discrimination suit, and that courts need only look to the face of a complaint to review the sufficiency of the conciliation process. The district court denied the EEOC’s motion and ruled that courts should evaluate conciliation to “determine whether the EEOC made a sincere and reasonable effort to negotiate.” The district court also certified a question for interlocutory appeal: Is an alleged failure to conciliate subject to judicial review in the form of an implied affirmative defense to the EEOC’s suit?

The Seventh Circuit’s Decision

The Seventh Circuit Court of Appeals reversed the lower court’s denial of summary judgment on the affirmative defense. The court ruled that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit. The federal appellate court disagreed with its “colleagues in other circuits” and held that Title VII’s “directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.”

The Seventh Circuit considered five factors in determining that the employer did not have a legally viable affirmative defense for failure to conciliate:

  1. Title VII’s statutory language. The court found that Title VII does not contain any express provision for an affirmative defense.
  2. The lack of a standard for the affirmative defense. The Seventh Circuit found that Title VII does not include a “meaningful standard” for courts to apply when evaluating the sufficiency of EEOC conciliation efforts or an implied failure-to-conciliate defense.
  3. Title VII’s broader statutory scheme. The Seventh Circuit found that an implied affirmative defense for failure to conciliate does not fit into Title VII’s scheme, but rather “invites employers to use the conciliation process to undermine enforcement of Title VII.”
  4. Relevant Seventh Circuit case law on an implied affirmative defense. The Seventh Circuit found that its rejection of the defense was consistent with other Seventh Circuit decisions that rejected “similar attempts by employers to change the focus from their employment practices to the agency’s pre-suit processes.”
  5. Other circuits’ decisions recognizing the affirmative defense. The court noted that there currently is a circuit split concerning the existence of and standard of review for an implied defense.

The Seventh Circuit is the first circuit to have explicitly rejected the affirmative defense of failure to conciliate. The Second, Fifth, and Eleventh Circuits evaluate conciliation under a searching three-part inquiry; the Fourth, Sixth, and Tenth Circuits require that the EEOC’s efforts at conciliation “meet a minimal level of good faith.”

Cert. Granted and Oral Arguments

In February of 2014, a petition for a writ of certiorari was filed with the Supreme Court of the United States, and in June of 2014, the Court agreed to hear the case. The precise issue before the Court is:

Whether and to what extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty to conciliate discrimination claims before filing suit.

On January 13, 2015, the Supreme Court heard oral arguments on this issue. During oral arguments, the justices raised concerns about the confidentiality of the conciliation process. The express statutory language of Title VII requires that all details of the conciliation process remain confidential. The Seventh Circuit pointed out that an implied failure-to-conciliate defense would directly conflict with this confidentiality provision. Justice Kagan questioned how the conciliation process could come in as evidence in a subsequent proceeding yet remain confidential.

Chief Justice Roberts repeatedly pressed a scenario in which an employer claimed that it had never been contacted by the federal agency to initiate the conciliation process:

And I’m trying to pose a question where it seems to me that it would be utterly unreasonable for you to say you don’t get judicial review of that basic question.

I am very troubled by the idea that the government can do something and we can’t even look at whether they’ve complied with the law. . . . And I just wanted you to tell me which it is, is it that there’s no authority for a court to review government action alleged to be in violation of law, or is it that the scope of judicial review for various reasons is sharply circumscribed?

Justice Kennedy asked—and Justice Sotomayor reiterated the question later during the arguments—what, in the absence of an affirmative defense, the Court’s specific rule should be with regard to the EEOC’s conciliation process and how courts should determine whether the EEOC has met its conciliation obligation:

. . . please, tell us what the minimum rule is. You don’t—you have not articulated a minimum rule.

. . .

. . . how do you want us to write what you want to hold in this case?

In response to a suggestion that courts “look at the letters indicating that there was an effort that was made by the EEOC,” Chief Justice Roberts stated,

So trust you?

. . .

Just trust you?

. . .

The other side is challenging with whatever evidence it has. Maybe it’s voluminous—affidavits, records—and you say, “Trust us. Here’s a letter saying we did it.” That’s the end of the case.

Justice Scalia followed this point with his speculation on the EEOC’s incentives for failing to conciliate:

I think, as the other side points out, there is considerable incentive on the EEOC to fail in conciliation so that it can bring a big-deal lawsuit and get a lot of press and put a lot of pressure on this employer and on other employers. There are real incentives to have conciliation fail.

The comments and questions during oral arguments showed that the justices are grappling with the two questions at issue in this case: (1) whether to impose judicial review on the EEOC’s conciliation efforts in light of Title VII’s confidentiality obligation; and (2) if courts are permitted to review the EEOC’s negotiations, what standard of review to use. There seems to be some agreement among the justices, however, in Justice Breyer’s view that “there should be judicial review.” “But,” as Justice Breyer continued, “the issue is how much” and whether a new standard of review will, as Justice Sotomayor put it, “give some teeth to judicial review.”


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