In EEOC v. Mach Mining LLC, the Seventh Circuit answered this question in the negative. Finding that the EEOC’s failure to adequately conciliate was not a valid defense as courts do not have the tools to adequately assess conciliation efforts, the court dismissed Mach Mining’s motion.
In this case, the EEOC is suing Mach Mining for allegedly systematically refusing to hire qualified female applicants for miner positions. Mach Mining denied the allegations and asserted as an affirmative defense that the EEOC had made inadequate attempts to resolve the case short of litigation. The EEOC then filed a motion for summary judgment asking the trial court to dismiss the affirmative defense and allow it to continue pursuing the underlying discrimination claims. The trial court denied the EEOC’s motion. The Seventh Circuit reversed, finding “[t]he language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.”
This decision creates a split in the federal courts, as other circuit courts have approved of the dismissal or stay of EEOC lawsuits pending good faith conciliation efforts. That circuit split may make the case a candidate for review by the U.S. Supreme Court. We will keep you posted.
The EEOC has been more aggressive of late, as we have noted in two past blog posts. If this decision is taken up by the Supreme Court, it stands to reason that employers may gain a very powerful defense against the EEOC’s aggressive tactics.