Employment – discrimination — failure to conciliate defense

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United States Court of Appeals For the Seventh Circuit

Civil

Employment – discrimination — failure to conciliate defense

An alleged failure to conciliate is not subject to judicial review in the form of an implied affirmative defense to suit by the EEOC.

“We reverse the district court’s denial of summary judgment on the affirmative defense. The 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. Finding in Title VII an implied failure-to-conciliate defense adds to that statute an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle. An implied failure-to-conciliate defense also runs flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process ‘as evidence in a subsequent proceeding.’ 42 U.S.C. § 2000e-5(b). We therefore disagree with our colleagues in other circuits and hold that 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.”

Reversed and Remanded.

13-2456 EEOC v. Mach Mining, LLC

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Hamilton, J.