In most employment discrimination cases, the employer’s first formal engagement on the issue occurs before a lawsuit is ever filed. Instead, the complaining employee must typically first file of a charge of discrimination with the EEOC (or the state agency equivalent, like the TCHR). The employer is then afforded the opportunity to respond and answer questions relating to the complaint.
During this administrative processing, importantly, the EEOC “shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b). There is, thus, a statutory mandate for the EEOC to engage in conciliation efforts to resolve complaints prior to litigation. But what if an employer believes the EEOC has failed to attempt in good faith to conciliate the discrimination complaint?
The Supreme Court will consider this question in Mach Mining, LLC v. EEOC, addressing whether and to what extent courts may enforce the EEOC’s duty to conciliate a case prior to filing a lawsuit. In Mach Mining, the employer asserted the issue as an affirmative defense, asking the Court to dismiss the sex discrimination case due to the EEOC’s failure to conciliate the case in good faith. The Seventh Circuit, diverging from six other circuits, held the employer could not raise the issue as an affirmative defense. Now, the Supreme Court will weigh in on the extent to which, if any, courts can scrutinize the EEOC’s efforts to resolve charges of discrimination.
Mach Mining, LLC v. EEOC, Case No. 13-1019