Recent Seventh Circuit Decision: No Affirmative Defense for Failure to Conciliate in Equal Employment Opportunity Commission Lawsuits

The United States Court of Appeals for the Seventh Circuit became the first federal circuit court to reject the failure to conciliate defense for employers who allegedly violated Title VII of the Civil Rights Act of 1964. According to the Court’s opinion in EEOC v. Mach Mining LLC (7th Cir. Dec. 20, 2013), employers who are defendants in actions brought by the Equal Employment Opportunity Commission (“EEOC”) in federal court may no longer assert failure to conciliate as an affirmative defense. As stated in the opinion written by Judge Hamilton, “the statutory 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 EEOC is required by statute to conciliate in cases in which the EEOC finds reasonable cause to believe that an employer has violated the statutes it enforces. Thus, Title VII, enforced by the EEOC, explicitly requires the EEOC to “eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” 42 U.S.C. § 2000e-5(b). The EEOC may then file a lawsuit if “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.” 42 U.S.C. § 2000e-5(f)(1).

In EEOC v. Mach Mining, the EEOC, after determining that there was reasonable cause to believe there was a violation of Title VII, invited Mach Mining to engage in conciliation efforts. After approximately one year, and after notifying Mach Mining that conciliation efforts were unsuccessful, the EEOC filed a lawsuit against Mach Mining in the United States District Court for the Southern District of Illinois. Mach Mining asserted as an affirmative defense that EEOC failed to conciliate in good faith the allegations raised in the complaint. The EEOC filed a motion for summary judgment arguing that there is no affirmative defense for failure to conciliate. The district court denied the motion, but certified the matter for interlocutory appeal. The Seventh Circuit granted the request for appeal.

The three-judge panel agreed with the EEOC and rejected the failure to conciliate defense. The Court decided that Title VII requires that the EEOC only try to conciliate, which is evidenced in Title VII’s language that the EEOC “endeavor to eliminate” unlawful practices. Additionally, the Court concluded that the EEOC is in full control of what matters should be conciliated as the “conciliation agreement [must] be acceptable to the Commission.” The opinion also stated that allowing such a defense would add “an unwarranted mechanism by which employers can avoid liability for unlawful discrimination.” Finally, the panel also noted that allowing such a defense would directly conflict with the statutory language as “[n]othing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned,” 42 U.S.C. § 2000e-5(b).

This decision created a split among other appellate courts that have ruled in favor of the affirmative defense. The Second, Fourth, Fifth, Sixth, Eighth and Tenth Circuits have accepted the failure to conciliate as an affirmative defense. It is likely that the employer will seek review of this decision in the United States Supreme Court, which may be considered now that there is a circuit split. For more information on this subject, contact Stephanie Strickler at (312) 334-3465 or