As published in
Employee Relations LAW JOURNAL
Vol. 40, No. 3 Winter 2014
Split Circuits
Supreme Court Takes Up Judicial Review of
EEOC Conciliation Efforts with Mach Speed
Howard S. Lavin and Elizabeth E. DiMichele
H
oward S. Lavin is a partner and Elizabeth E. DiMichele a special counsel in the
Employment Law Practice Group of Stroock & Stroock & Lavan LLP, concentrating in
employment law counseling and litigation. The authors can be reached at hlavin@stroock.com
and edimichele@stroock.com, respectively. The authors gratefully acknowledge the assistance
of Michael A. Fernández, an associate in the firm’s Litigation Department, in the preparation of
this column.
Are the pre-lawsuit conciliation efforts of the Equal Employment Opportunity Commission
(EEOC or Commission) with respect to claims under Title VII of the Civil Rights Act of 1964 (Title
VII) subject to judicial review? The Seventh Circuit has held that Title VII permits no judicial
review. By contrast, the eight other circuits that have considered the question have held that
the EEOC’s efforts to settle discrimination claims may be the subject of judicial review. The
Supreme Court has granted certiorari and will soon resolve this circuit split.
The Statutory Background
The EEOC’s enforcement procedures under Title VII are set forth in 42 U.S.C. § 2000e-5. The
process begins when the EEOC receives a charge of discrimination from an aggrieved individual
____________________________
Howard S. Lavin concentrates in employment and labor law matters.
Elizabeth DiMichele represents employers in connection with employmentrelated issues, including discrimination and compensation claims, before state
and federal courts, arbitration panels, and local, state and federal fair
employment agencies.
or a Commission member. It then must notify the employer and investigate whether
reasonable cause exists to support the allegations. A finding of cause triggers the conciliation
process, which requires the EEOC to “endeavor to eliminate any such alleged unlawful
employment practice by informal methods of conference, conciliation, and persuasion.” 1 The
EEOC may sue only after it “has been unable to secure from the respondent a conciliation
agreement acceptable to the Commission.” 2 The text of Title VII contains no express provision
for an affirmative defense based on an alleged defect in the EEOC’s conciliation efforts.
Judicial Review and the Three-Prong Test
In Equal Opportunity Commission v. Mach Mining, LLC, the Seventh Circuit addressed whether
there was an implied affirmative defense to an EEOC action based on the EEOC’s alleged failure
to conciliate a discrimination charge.3 The Seventh Circuit held that the EEOC’s conciliation
efforts are not subject to judicial review and rejected an implied affirmative defense.
Before the Seventh Circuit’s Mach Mining, LLC decision, every other circuit that had considered
the issue agreed that the EEOC’s conciliation efforts were subject to judicial review. However,
the other circuits were divided over the level of scrutiny applicable to such judicial review. For
example, the Fourth, Sixth, and Tenth Circuits ask generally whether the Commission acted in
“good faith” or “reasonably.” 4 By contrast, the Second, Fifth, and Eleventh Circuits utilize a
three-prong test that requires the EEOC to (i) outline to the employer the reasonable cause for
its belief that Title VII has been violated; (ii) offer an opportunity for voluntary compliance; and
(iii) respond in a reasonable and flexible manner to the reasonable attitudes of the employer.5
In turn, the Eighth and Ninth Circuits have never articulated a standard of review. 6
In June 2014, the U.S. Supreme Court granted certiorari to consider “[w]hether and to what
extent a court may enforce the Equal Employment Opportunity Commission’s mandatory duty
to conciliate discrimination claims before filing suit.” 7
1
§ 2000e-5(b).
§ 2000e-5(f)(1).
3
E.E.O.C. v. Mach Min, LLC, 738 F.3d 171 (7th Cir. 2013).
4
E.g. EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1102 (6th Cir. 1984); EEOC v. Radiator Specialty Co., 610 F.2d
178, 183 (4th Cir. 1979); EEOC v. Zia Co., 582 F.2d 527, 533 (10th Cir. 1978).
5
E.g. EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003); EEOC v. Johnson & Higgins,
Inc., 91 F.3d 1529, 1534 (2d Cir. 1996); EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107 (5th Cir. 1981).
6
E.g. EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 676-677 (8th Cir. 2012); EEOC v. Bruno’s Rest., 13 F.3d
285, 288-289 (9th Cir. 1993).
7
Mach Min., LLC v. E.E.O.C., 13-1019, http://www.supremecourt.gov/qp/13-01019qp.pdf.
2
The Seventh Circuit’s Mach Mining Decision
In Mach Mining, the EEOC received a discrimination charge in early 2008 from a woman who
claimed that Mach Mining had rejected her application for several coal mining jobs because of
her sex.8 After investigating the charge, the EEOC determined there was reasonable cause to
believe the company had discriminated against a number of female job applicants.9 In late
2010, the EEOC notified the company of its intention to begin informal conciliation.10 The
parties discussed possible resolutions but did not reach an agreement. 11 In September 2011,
the EEOC advised Mach Mining that it had determined that the conciliation process had been
unsuccessful and that further efforts would be futile. 12 The EEOC filed its complaint in district
court two weeks later. 13
In response, Mach Mining asserted as an affirmative defense the EEOC’s purported failure to
conciliate.14 The EEOC moved for summary judgment solely on the issue of whether, as a
matter of law, an alleged failure to conciliate is an affirmative defense to its suit for unlawful
discrimination.15 The district court denied the EEOC’s motion but certified the question for
interlocutory appeal.16
On appeal, the Seventh Circuit considered
•
the statutory language;
•
whether there is a workable standard for such a defense;
•
whether the defense might fit into the broader statutory scheme;
•
its own relevant case law; and
•
the decisions of other courts recognizing the affirmative defense.17
To that end, the court first emphasized the discretion afforded to the EEOC inherent in the
language of 42 U.S.C. § 2000e-5. The Seventh Circuit then considered the standards that other
courts have used to review the EEOC’s conciliation efforts, notably eschewing reliance on the
8
9
10
11
12
13
14
15
16
17
738 F.3d at 173.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
Id. at 174.
National Labor Relations Act (NLRA) and its negotiation scheme as guidance in evaluating Title
VII conciliation. 18 The court next considered the policy implications of permitting judicial
review of conciliation efforts, concluding that such review would undermine conciliation. 19
Thereafter, the court evaluated its precedents on the issue.20 Finally, the Seventh Circuit
evaluated and rejected the precedents of its sister circuits, which authorized judicial review of
the EEOC’s conciliation efforts. 21
The “Good Faith” Circuits
In contradistinction to the Seventh Circuit, the Fourth, Sixth, and Tenth Circuits will review the
EEOC’s conciliation efforts to consider whether the EEOC acted in “good faith.” These circuits,
however, are not necessarily uniform in their approach to evaluating good faith. For example,
the Tenth Circuit has used the NLRA as guidance in shaping the court’s inquiry into whether an
employer’s conduct constitutes “good faith.” 22 The Sixth Circuit explained that good faith does
not require that the EEOC has a “duty to attempt further conciliation after an employer rejects
its offer.” 23 The Fourth Circuit has simply evaluated the circumstances of the particular case. 24
This analysis has led the court to dismiss an action brought by the EEOC upon finding that its
conciliation efforts were insufficient. 25
The “Three-Prong” Circuits
Although agreeing that the Commission must act in good faith, the Second, Fifth, and Eleventh
Circuits also require the EEOC to satisfy the three-prong test delineated above. In practice,
however, application of the three-prong test does not appear to provide a significantly higher
degree of predictability than assessing the EEOC’s good faith. Like the circuits that simply
evaluate the EEOC’s conduct on the basis of a good faith standard, the circuits that utilize a
three-prong test do not require the EEOC to pursue conciliation where the defendant refuses
the invitation to conciliate or denies the EEOC’s allegations. 26 On the other hand, applying the
three-prong test, the Eleventh Circuit upheld the dismissal of an action filed by the EEOC and
awarded the defendant attorney’s fees based upon the determination that the EEOC did not act
in a “reasonable” manner in attempting to conciliate the dispute. 27
18
19
20
21
22
23
24
25
26
27
Id. at 177.
Id. at 178-180.
Id. at 181-182.
Id. at 182-184.
E.g., Zia Co., 582 F.2d at 533.
E.g., Keco Indus., Inc., at 1101-1102.
E.g., Radiator Specialty Co., 610 F.2d 178.
Patterson v. Am. Tobacco Co., 535 F.2d 257, 272 (4th Cir. 1976).
Johnson & Higgins, Inc., 91 F.3d at 1535.
Asplundh Tree Expert Co., 340 F.3d 1256.
The Rest
In contrast to the six circuits that have articulated some standard for evaluating the sufficiency
of the EEOC’s conciliation efforts, the Eighth and Ninth Circuits have not set forth a clear
standard of review, although they agree that the EEOC’s conduct in this regard is subject to
judicial review. For instance, the Eighth Circuit has simply suggested that the EEOC must
provide an employer with a “meaningful opportunity to conciliate,” without further
elaboration. 28 Similarly, the Ninth Circuit has held only that “[g]enuine . . . conciliation” is a
“jurisdictional condition[] precedent to suit by the EEOC.” 29
Looking Ahead
The Seventh Circuit’s Mach Mining decision clearly stakes out its disagreement with the other
circuits and created a stark Circuit split. Thus, it should come as no surprise that the Supreme
Court granted certiorari to review its decision. In any event, the Supreme Court will likely issue
a decision addressing whether the EEOC’s conciliation efforts are subject to judicial review and,
perhaps, the scope of that review, next term. However, until the Supreme Court speaks,
whether the EEOC’s conciliation efforts may be the subject of judicial review will depend upon
the circuit.
28
29
CRST Van Expedited, 679 F.3d at 676.
EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir. 1982).