The Seventh Circuit Court of Appeals, which covers Indiana, Illinois, and Wisconsin (7th Circuit) went against a strong trend in litigation involving Title VII of the Civil Rights Act of 1964. The 7th Circuit rejected the use of an affirmative defense that the Equal Employment Opportunity Commission (EEOC) failed to engage in good faith conciliation prior to filing a lawsuit against an employer. This case involved a female applicant who alleged she was rejected for a coal mining position with Mach Mining, LLC in Johnston City, Illinois.

Legal Background
Title VII prohibits discrimination on the basis of gender, race, religion, and other protected classifications. It sets forth procedural requirements for filing a lawsuit against an employer. One of these requirements is that the EEOC must engage in conciliation prior to filing a lawsuit. Seven different Circuit Courts of Appeal have determined that this requirement creates an implied affirmative defense for employers who are sued by the EEOC. In those circuits, employers who have been sued for discrimination may argue that the EEOC’s failure to engage in good faith conciliation bars the lawsuit. However, this affirmative defense is not available to employers in the 7th Circuit.

7th Circuit Rejection of Conciliation Affirmative Defense
In rejecting the conciliation affirmative defense, the 7th Circuit held that the statutory language provided no basis for providing employers with an affirmative defense merely relying on the EEOC’s alleged failure to conciliate. The court also noted that there was no meaningful standard to apply as the statute does not provide guidance on the methods or practices the EEOC must use in its conciliation process. Further, the 7th Circuit suggested that the affirmative defense undermines the statute’s purpose, allowing employers to engage in discrimination, put up roadblocks to the conciliation process, and then use the failed conciliation to defend against the EEOC’s lawsuit. Finally, the court held that its own precedent consistently rejected employers’ efforts to change the focus from their own conduct to the EEOC’s pre-suit actions.

What This Means for Employers:
This case provides two big reminders. First, employers need to get their policies and practices prohibiting discrimination in order. An employer has a duty to take proactive and adequate corrective steps to prevent and eradicate discriminatory conduct in their workplace. This usually includes having adequate and up to date policies, training personnel, and actually complying with written policies in investigating and eradicating discriminatory behavior.

Second, when the day comes that notice from the EEOC arrives that a charge has been filed against the employer, an employer may no longer rely on the EEOC’s alleged failures as a defense in any subsequent lawsuit (at least in the 7th Circuit). Employer’s need to be proactive and engage in good faith resolution of EEOC charges when appropriate.

There are other affirmative defenses available to the employer unrelated to the EEOC’s actions. But the best and least expensive option is for an employer to be proactive. Please contact us if you have any questions or need assistance in these matters.