Courts in recent years have been confronted with increasing numbers of lawsuits alleging that the Equal Employment Opportunity Commission (EEOC) failed to adequately conciliate, or settle, discrimination charges filed with the agency before filing suit. While courts have met these cases with varying degrees of responses, in a budget report released in early May 2014 by the House Appropriations Committee, lawmakers weighed in and expressed concern about the pursuit of litigation by the EEOC before engaging in “good faith conciliation efforts.”

By way of background, pursuant to the enforcement procedure set forth in Title VII of the Civil Rights Act of 1964, if the EEOC finds that there is reasonable cause to believe a violation of Title VII has occurred, it “shall endeavor to eliminate any … alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.” Indeed, the EEOC is precluded from filing suit unless it “has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.” However, as some employers have experienced, the conciliation process can move fairly quickly, and the only time constraint on the EEOC’s ability to file suit is that it cannot do so within the first 30 days after receiving the original charge. Thus, employers often find themselves embroiled in litigation with the EEOC before they believe they have had a meaningful opportunity to fully explore pre-suit resolution.

Employers finding themselves in these situations have at times sought relief from the courts, arguing that the EEOC failed to meet its statutory obligation to “endeavor to eliminate” any alleged unlawful practices through the conciliation process. Indeed, some employers have argued that there is at least an implied, if not express, affirmative defense for failure to conciliate that they can — and do — assert in litigation.

In response to these arguments, courts have been somewhat mixed in their interpretation of the litigation effects of the conciliation requirement found in Title VII. For example, in a rather celebrated decision for employers, the 8th Circuit Court of Appeals in EEOC v. CRST Van Expedited affirmed the dismissal of sexual harassment class claims on the grounds that the EEOC failed to adequately conciliate the underlying charges of discrimination.

The 7th Circuit Court of Appeals in EEOC v. Mach Mining broke with this seeming trend and held late last year that the EEOC’s conciliation efforts are not subject to judicial review and that employers cannot raise failure to conciliate as an affirmative defense. In so doing, the Court of Appeals stated that its decision made it the first circuit to explicitly reject the implied affirmative defense of failure to conciliate. The 7th Circuit nevertheless reasoned, inter alia, that finding in Title VII an implied failure-to-conciliate defense added an unwarranted mechanism by which employers could avoid liability for unlawful discrimination and that the EEOC could be trusted to police itself in its conciliatory measures.

The 7th Circuit also noted in its decision that the courts of appeals “already stand divided over the level of scrutiny to apply in reviewing conciliation.” Specifically, the 7th Circuit stated that the 2nd, 5th and 11th Circuits evaluate conciliation under a searching three-party inquiry that asks whether the EEOC outlined to the employer its case for believing Title VII has been violated, gave the employer the chance to comply voluntarily, and responded in a reasonable and flexible manner to the reasonable attitudes of the employer. The 7th Circuit also pointed out that the 4th, 6th and 10th Circuits require instead that the EEOC’s efforts meet a minimal level of good faith.  

In the meantime, Mach Mining has filed a petition for a writ of certiorari to the Supreme Court, and lawmakers have placed increased pressure on the EEOC with their latest communication in May. The House Appropriations Committee recommended that funding for the EEOC in 2015 remain at its 2014 level and instructed the EEOC to engage in conciliation efforts before filing suit. It also told the agency to report back on how it plans to pursue conciliations no later than 90 days after the proposed bill would take effect.

Although these actions may result in the EEOC adjusting its approach and doing more work before pulling the trigger on litigation, in light of the EEOC’s aggressive enforcement efforts over the past few years, employers should still expect the EEOC to continue to contest employers’ ability to challenge the sufficiency of conciliation efforts.