Seventh Circuit splits on conciliation defense to EEOC suit

A few years ago, the EEOC got socked with a number of penalties in pattern and practice cases for failing to conciliate on behalf of all potential claimants. In EEOC v. CRST, the District Court for the Northern District of Iowa penalized the EEOC with $4.5 million in attorneys fees, which the Eighth Circuit reduced, and in EEOC v. Cintas, the District Court for the Eastern District of Michigan granted Cintas $2.6 million in attorneys fees for a similar issue. In other cases, the courts dismissed the claims, allowing a failure to conciliate defense, or at least assumed that such a defense would be available. The full list is: EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003); EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529 (2d Cir. 1996); EEOC v. Keco Indus., Inc., 748 F.2d 1097 (6th Cir. 1984); EEOC v. Klingler Elec. Corp., 636 F.2d 104 (5th Cir. 1981); EEOC v. Radiator Specialty Co., 610 F.2d 178 (4th Cir. 1979); EEOC v. Zia Co., 582 F.2d 527 (10th Cir. 1978).

A couple of weeks ago, the Seventh Circuit found the opposite. In EEOC v. Mach Mining, the Seventh Circuit held that there was no implied failure to conciliate defense in Title VII. In its own words, the Seventh Circuit split with the other circuits to find such a defense because:

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 and 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).

It's possible that this could pave the way for the Supreme Court to weigh in, or start a trend winnowing away the defense in other circuits. We will have to see.

MM