March, 2014, three powerful business groups urged the U.S. Supreme Court to consider an important issue at stake for employers in Mach Mining LLC v. Equal Employment Opportunity Commission—can courts review the adequacy of the Equal Employment Opportunity Commission’s (“EEOC’s”) conciliation efforts prior to filing suit? In Mach Mining, the Seventh Circuit held “no,” although six other circuits to address this issue have acknowledged an employer’s ability to raise failure to conciliate as an affirmative defense. If the Supreme Court grants Mach Mining’s February 25, 2014 petition for review, the ruling could have significant impact for employers facing potential litigation with the EEOC.

The March 28, 2014 amicus brief filed by the U.S. Chamber of Commerce, the Retail Litigation Center, Inc., and the National Federal of Independent Business Small Business Legal Center, focuses on the Congressional intent behind Title VII’s requirement that the EEOC first engage in conciliation efforts to resolve an employer’s alleged unlawful employment practice before suing the employer, and the importance of judicial review in order to ensure a meaningful conciliation process. As explained in the brief, “Title VII’s enforcement history illustrates that the EEOC too often bypasses meaningful conciliation, preferring to sue first and negotiate later. But Congress understood that the best chance to settle a dispute is before litigation, and therefore directed the EEOC to conciliate before filing a suit.” The brief further argues that “more litigation and less conciliation . . . is the very opposite of what Congress wanted when it enacted Title VII.”

The adequacy of the EEOC’s pre-litigation conciliation efforts has been in the spotlight for several months now. In August 2013, a district court judge in Iowa ordered the EEOC to pay $4.7 million in attorneys’ fees and expenses to CRST Van Expedited, Inc., partially on the ground that the EEOC failed to reasonably fulfill Title VII’s requirement to engage in an adequate investigation and conciliation process prior to filing suit. Adopting the rationale of CRST, the Southern District of New York dismissed a case brought by the EEOC and awarded attorneys’ fees to defendant Bloomberg L.P. for failing to comply with its pre-litigation statutory obligations. In particular, the court found the EEOC failed to engage in any meaningful conciliation efforts to resolve claims of twenty-nine current and former employees in a sex/pregnancy discrimination and retaliation case.

It remains to be seen whether the Supreme Court will weigh in on the viability of the “failure-to-conciliate” affirmative defense. If accepted, in addition to resolving the circuit split over reviewing conciliation efforts, the Supreme Court could also shed light on a court’s ability to evaluate the adequacy of the EEOC’s investigation, another central issue in many EEOC cases. On March 10, 2014, a district court in New York dismissed the EEOC’s claim of nationwide gender discrimination against Sterling Jewelers, Inc. While the Court disagreed with the company’s position that courts are entitled to review the adequacy of an EEOC investigation, it did hold that courts are allowed to determine whether an investigation actually occurred, as well as the scope of the investigation.

Given the EEOC’s aggressive litigation efforts, the future of affirmative defenses challenging the EEOC’s compliance with preconditions to filing suit is of great import to employers.