Under Title VII and related civil rights laws, after it determines probable cause for a violation, the Equal Employment Opportunity Commission must engage in “conciliation” of the claim to see if a settlement can be reached. Conciliation is a fancy term for the investigator contacting the employer and charging party, and trying to negotiate a monetary or other settlement. Last month, the Seventh Circuit Court of Appeals refused to stop the EEOC’s subsequent lawsuit over allegations that it did not seek effective conciliation.
 
EEOC v. Mach Mining, LLC involved sex discrimination claims against the employer. It contended that the EEOC made minimal efforts to conciliate the claim, and instead sued the company seeking class relief. Mach Mining claimed that the EEOC could not sue because it failed to comply with Title VII’s requirement for a good faith conciliation of for-cause charges.
 
The Seventh Circuit rejected this defense, allowing the claim to proceed. The court noted that the specific language in the statute only requires conciliation to the EEOC’s satisfaction. In other words, the agency is not obligated to take any steps in conciliation beyond what it believes best fulfills its objective to eliminate employment discrimination. The Seventh Circuit noted the lack of legislative basis for any specific conciliation requirements that a court could devise. Given the EEOC’s personnel and budget limitations, any such standards could interfere with its ability to seek judicial relief for aggrieved parties.
 
A number of other federal appellate circuits, including the Fourth Circuit (which includes North Carolina and South Carolina) have at least indirectly recognized an affirmative defense to discrimination claims based on the failure of the EEOC to conciliate. This opposite opinion increases the chances that the U.S. Supreme Court will determine the extent of the agency’s conciliation obligations.