Hunton Employment & Labor Perspectives

In a budget report released by the House Appropriations Committee on May 8, 2014, lawmakers expressed their concern with “the EEOC’s pursuit of litigation absent good faith conciliation efforts.”   The Committee’s report, which sets out the Committee’s recommended funding proposals for various federal departments and agencies, directs the EEOC “to engage in [good faith conciliation] efforts before undertaking litigation and to report, no later than 90 days after enactment of this Act, on how it ensures that conciliation efforts are pursued in good faith.”

The EEOC has yet to publicly responded to this Report, but it will be interesting to see what impact, if any, the report has on future pursuits by the EEOC.

The EEOC’s statutory duty to conciliate in good faith prior to filing suit, 42 U.S.C. §2000e-5(b), is one that has been heavily litigated in the courts and one which will likely remain so, particularly in light of circuit splits not merely as to what deference the EEOC is entitled to with respect to its good faith conciliation obligations but whether good faith conciliation is even a statutory prerequisite – see, e.g., EEOC v. Mach Mining, LLC, 738 F.3d 171 (7th Cir. 2013), in which the Seventh Circuit held at the end of last year that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.  The defendant-employer in Mach Mining has since sought Supreme Court review of the circuit court’s decision.

In light of Mach Mining and the House Report, the EEOC’s duty to conciliate remains a key issue for employers to track.