Waiting for the Dust to Settle: Mach Mining and the Future of the EEOC's Duty to Conciliate in Good-Faith Prior to Civil Litigation

In 2013, individuals filed more than 100,000 charges of Title VII violations with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), thousands of which the EEOC has -- and continues -- to aggressively investigate and pursue. A problem arises, however, when the EEOC’s zealousness translates into unreasonable conciliation demands that deadlock the potential resolution of these claims prior to the filing of a lawsuit. Specifically, this aggressiveness conflicts with the EEOC’s express statutory duty to attempt to secure, in good faith, a conciliation agreement with the employer as a precondition to filing suit. See 42 U.S.C. § 2000(e)-5(f)(1). Many employers have challenged the EEOC’s filing of a lawsuit on the basis that it failed to attempt a resolution in good-faith in violation of this statutory duty.

While this precondition to litigation may appear straightforward and should inure to both the EEOC’s and employer’s benefit, Title VII’s statutory scheme does not contain any framework or instruction to determine when a good-faith conciliation effort has occurred (but failed). For this reason, federal circuits are currently split on the judiciary’s role in evaluating whether the EEOC has satisfied its statutory obligation to conciliate when faced with a lawsuit on its dockets. At one extreme, the Seventh Circuit has held that the conciliation precondition is nonjusticiable. Maching Mining, 738 F.3d 171, 172 (7th Cir. 2013) cert. granted, 134 S. Ct. 2872 (2014). In the middle, three circuits (the Fourth, Sixth and Tenth) have found that the conciliation precondition is subject to judicial review, but under a deferential standard. Serrano v. Cintas Corp., 699 F.3d 884, 904 (6th Cir. 2012). The Eighth and Ninth circuits have also subjected the EEOC’s conciliation efforts to fairly strict judicial review, but neither circuit has articulated a specific standard. See, e.g., EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 676 (8th Cir. 2012); EEOC v. Pierce Packing Co., 669 F.2d 605, 608 (9th Cir. 1982)). Finally, on the opposite extreme from the Seventh Circuit, three circuits (the Second, Fifth and Eleventh) have held that the conciliation precondition is subject to judicial review and apply a three-factor evaluation of the EEOC’s conciliation efforts. E.E.O.C. v. Agro Distribution, LLC, 555 F.3d 462, 468 (5th Cir. 2009); see also Asplundh Tree Expert, 340 F.3d at 1259; E.E.O.C. v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2d Cir....