EEOC Naughty, But Employer Gets Lump of Coal


A federal court of appeals recently broke ranks with other federal appellate courts, holding that the EEOC’s failure to obey its statutory duty to conciliate before filing a lawsuit does not serve as a defense to the lawsuit. EEOC v Mach Mining, LLC, No. 3:11-cv-879 (S.D. Illinois December 20, 2013)  Title VII plainly states that, if the EEOC finds cause to believe that discrimination occurred, it must first attempt to conciliate the dispute with the employer before it runs to court to file a lawsuit. The purpose of this provision is to fulfill Title VII’s overarching goal to expeditiously resolve workplace discrimination short of costly litigation. In this case, the employer argued that the EEOC did not attempt to conciliate the dispute in good faith (although the opinion appears purposely silent on the EEOC’s conciliation behavior). The employer maintained that the EEOC’s failure to attempt to resolve the dispute short of running into the courthouse prevented the EEOC from bringing the lawsuit entirely. The Seventh Circuit disagreed, and concluded that a court may not question the EEOC’s conciliation efforts (or even its complete refusal to conciliate), and an employer may not use the EEOC’s failure to conciliate as a defense to a Title VII claim.

The Seventh Circuit’s decision could not come at a worse time. As the EEOC has been more and more prone to give short shrift to its statutory duty to conciliate rather than litigate, this decision can only serve to empower the EEOC’s non-conciliatory bent. The Grinch wins, and employers lose.

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