Supreme Court Grants Certiorari in Mach Mining LLC v. EEOC to Consider "Failure to Conciliate" Affirmative Defense
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On June 30, 2014, the United States Supreme Court granted Mach Mining LLC’s petition for writ of certiorari, agreeing to take up the question of whether and to what extent courts may enforce the Equal Employment Opportunity Commission’s (“EEOC”) duty to conciliate a case prior to bringing a lawsuit.

The EEOC sued Mach Mining LLC in 2011, alleging that the company discriminated against a class of female applicants on the basis of their sex. In its response, Mach Mining raised an affirmative defense, asking the district court to dismiss the case because the EEOC failed to conciliate the case in good faith, as required by 42 U.S.C. § 2000e-5(b). The EEOC moved for partial summary judgment on Mach Mining’s “failure to conciliate” affirmative defense, arguing that the EEOC’s conciliation efforts were not reviewable by the court. The district court denied the EEOC’s motion, but certified the issue for an interlocutory appeal.

On appeal, the Seventh Circuit reversed the district court’s decision, holding that the EEOC’s conciliation efforts were not reviewable by the court.  In doing so, the Seventh Circuit broke with the precedent set by every other Court of Appeals to have considered the issue. The Second, Fourth, Fifth, Sixth, Eighth, and Ninth Circuits have all held that the EEOC’s duty to conciliate is reviewable to some extent, though under different levels of scrutiny.

Mach Mining petitioned the Supreme Court to review the Seventh Circuit’s decision. Although the EEOC prevailed in the Seventh Circuit, the EEOC also urged the Supreme Court to take the case to resolve the circuit split. 

The case will be heard during the Supreme Court’s October 2014 term.


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