By Gerald L. Maatman, Jr. and Jennifer A. Riley

This week, the EEOC responded to Mach Mining’s petition for a writ of certiorari to the U.S. Supreme Court in EEOC v. Mach Mining, Case No. 13-1019 (U.S. May 29, 2014). Although the EEOC prevailed in the Seventh Circuit, it backed Mach Mining’s request for Supreme Court review to resolve disagreement among the courts of appeals regarding its conciliation obligations.

We previously blogged about this case here. In a game-changing decision, the Seventh Circuit ruled in December 2013 that an alleged failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit brought by the Commission. 

This case presents an important issue for employers engaged in dealings with the EEOC, as it addresses whether the EEOC has any enforceable obligation to engage in good faith settlement discussions prior to filing a lawsuit.

In its Brief, the EEOC argued that the Seventh Circuit “correctly” held that the informal conciliation process is entrusted to the Commission. Id. at 7. Nonetheless, it urged the Supreme Court to grant certiorari to affirm the Seventh Circuit and hold that there is no implied failure-to-conciliate affirmative defense under Title VII. Id. at 19. 

Among other things, the EEOC complained that the disagreement in the circuits “has placed the Commission in an untenable position.” Id. at 17. It did not explain why the most stringent test is “untenable,” but more generally asserted that “the wide variety in the courts’ approaches” makes it difficult for the agency to ensure that its informal efforts are “sufficiently robust.” Id.

The EEOC also noted that, in its view, conciliation has become more “protracted, resource-intensive, and time consuming.” Id. at 18. It complained that a failure-to-conciliate defense “has created incentives for employers to treat conciliation not as a means to resolve disputes voluntarily, but as an opportunity to develop an affirmative defense for litigation.” Id.

Implications For Employers

We view the Seventh Circuit’s ruling as a game-changer, and one that raises cert-worthy issues. Armed with the knowledge that a federal district court judge cannot review its pre-lawsuit conciliation strategy based on EEOC v. Mach Mining, the Commission typically approaches negotiations in a very aggressive, take-it-or-leave-it type manner. Outside the Seventh Circuit, the EEOC cannot approach its duty of good faith conciliation in such a manner, or it risks its chances in a federal courtroom after filing suit.

Readers can also find this post on our EEOC Countdown blog here.

Stay tuned to see whether the Supreme Court elects to grant certiorari in this case or to table this issue for another day.