Presuit Settlement Spat Heads to Supreme Court

     WASHINGTON (CN) - The Supreme Court agreed Monday to resolve whether employers accused of discrimination can challenge the sufficiency of presuit negotiations.
     Mach Mining raised the question when faced with a sex-discrimination-in-hiring claim by the Equal Employment Opportunity Commission (EEOC).
     Title VII of the Civil Rights Act requires the EEOC to first attempt negotiating with an accused employer before it files suit, and Mach had claimed that the agency failed in its case to engage in good-faith conciliation.
     The EEOC sought summary judgment on Mach's failure-to-conciliate defense, but a federal judge in Benton, Ill., refused the agency such relief.
     A three-judge panel of the 7th Circuit reversed in December 2013, creating a circuit split.
     "The language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit," its decision states. "Finding in Title VII an implied failure-to-conciliate defense adds to that statute an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle. An implied failure-to-conciliate defense also runs flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process 'as evidence in a subsequent proceeding.' We therefore disagree with our colleagues in other circuits and hold that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII in a challenge to the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VI."
     Per its custom, the Supreme Court did not issue any comment in taking up the case Monday.