In EEOC v. Mach Mining, LLC, the Seventh Circuit sharply diverged with its sister circuits when it held that the Equal Employment Opportunity Commission (EEOC)'s statutorily mandated conciliation process is immune from judicial review. In Mach Mining, the Seventh Circuit addressed the provision contained in Title VII of the Civil Rights Act of 1964 that requires the EEOC to engage in "informal methods of conference, conciliation, and persuasion" with an employer before it can file a discrimination lawsuit against that employer. These pre-suit negotiations, or "conciliation," provide an opportunity for the EEOC to reach an out-of-court agreement with an employer without seeking judicial remedy. Although Title VII requires that conciliation occur before the EEOC can file its lawsuit, the Seventh Circuit held that the EEOC's conciliation process is not—and should not be—subject to any level of judicial review. In other words, courts may not conduct any investigation whatsoever into any aspect of the EEOC's conciliation efforts.
At first glance, it seems as though the Seventh Circuit has taken an extreme approach to interpreting the conciliation requirement. Upon closer examination, however, it becomes apparent that the Seventh Circuit's interpretation of the conciliation requirement is fully consistent with the text and purpose of Title VII. The language of Title VII does not authorize judicial review of the conciliation process. On the contrary, Title VII effectively insulates the conciliation process from judicial scrutiny by granting the EEOC full discretion in defining and executing the conciliation process and by requiring that the process remain confidential. Furthermore, allowing judicial review of the conciliation process undermines both the purpose of conciliation and the spirit of Title VII. As the Mach Court noted, "[t]here is no indication that Title VII's directive to conciliate was for the special benefit of the employers or that they have a right to conciliation."1 Rather, "Congress was focused on effective enforcement of the anti-discrimination standards of Title VII, not creating new rights for employers."2 The EEOC's General Counsel, David Lopez, aptly summarized the result in Mach, stating that "[the Seventh Circuit] carefully applied the letter of the law ... in a way that promotes Title VII's goals, protects victims of discrimination, and preserves the EEOC's critical law-enforcement prerogatives."3
1 EEOC v. Mach Mining, LLC, 738 F.3d 171, 175 (7th Cir. 2013).
2 Id. at 180.
3 EEOC, EEOC In Landmark Ruling, Seventh Circuit Holds Employers Cannot Challenge EEOC Conciliation, at http://www.eeoc.gov/eeoc/newsroom/release/12-20-13b.cfm (Dec. 20, 2013).
Lisa M. DeLeon,
Conference, Conciliation, and Persuasion: The Seventh Circuit's Groundbreaking Approach to Analyzing the EEOC's Pre-Suit Obligations,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol9/iss2/7