May 2014 Volume XIII No. 5 Taking Care of Business
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Supreme Courts Does Not Review Seventh Circuit’s Break with Other Circuits

Kevin Kerr
Kevin Kerr

The Supreme Court declined to review the Seventh Circuit’s decision In EEOC v. Mach Mining, LLC. In that case, the Seventh Circuit held that Title VII of the 1964 Civil Rights Act does not permit judicial review of the EEOC’s conciliation efforts to settle discrimination charges before suit can be filed against an employer for discrimination.

In Mach Mining, the EEOC filed a lawsuit on a sex discrimination charge. Title VII requires the EEOC attempt to conciliate the dispute, prior to filing suit. The employer asserted the failure of good faith conciliation as an affirmative defense to a discrimination claim. The EEOC sought summary judgment on this defense arguing that its conciliation process was not subject to judicial review. The EEOC’s motion for summary judgment was denied and was certified for appeal.

On appeal the Seventh Circuit held that the EEOC’s failure to engage in good faith conciliation was not an affirmative defense to the merits of a discrimination suit. The employer could not assert this as a defense to liability where the employee asserted discrimination. This was because the EEOC’s good faith in efforts to achieve conciliation was not subject to judicial review.

Seven other Circuits had previously held that Courts have authority to review the EEOC’s conciliation process as an affirmative defense to the employer’s liability for a discrimination claim. Where the EEOC failed to conciliate in good faith, the discrimination charge was subject to dismissal. The employer sought review by the Supreme Court. On April 21, 2014, the Supreme Court denied the petition for certification.

This left the Seventh Circuit’s opinion as the law on this issue in that circuit and creates a split in the circuits. The majority of circuits still recognize an affirmative defense that the EEOC failed to, in good faith, conciliate the discrimination claim. However, in the Seventh Circuit, including Illinois, Indiana and Wisconsin, no such defense exists.


If you have any questions about the Seventh Circuit’s break with other circuits and/or other areas of law, contact your Hoeppner Wagner & Evans LLP relationship attorney.


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