Recently, the U.S. Supreme Court agreed to hear EEOC v. Mach Mining. This case is not directly related to employment screening, but speaks to the power the EEOC has in its litigation strategy and tactics. Title VII requires the EEOC to conciliate an employee grievance as a precursor to bringing suit for discrimination.
As noted in the U.S. Chamber’s testimony in a recent House oversight hearing, [d]espite the statutory requirement to conciliate, the EEOC rejects the notion that its statutory obligation is subject to judicial review; rather, the EEOC contends that courts must simply accept the EEOC’s assurance it occurred.” David Lopez, the EEOC GC called Mach Mining a “landmark decision.” Mach Mining, decided by the 7th Circuit, created a conflict in the circuits. The 7th Circuit found that an alleged failure to conciliate is not an affirmative defense to the merits of an employment discrimination suit brought by the EEOC. Yet, the ruling by the 7th Circuit stands in sharp contrast to holdings from the 2nd, 4th, 5th, 6th, 10th and 11th Circuits which find that an alleged failure to conciliate is indeed affirmative defense. EEOC v. Mach Mining will be argued in the Supreme Court term that begins in Oct. 2014 and an opinion will be issued by June 2015.