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Seventh Circuit Creates Circuit Split On “Failure To Conciliate” Affirmative Defense

By Joseph A. White

If after investigation, the Commission determines there is reasonable cause to believe that the charge [of discrimination] is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion. 42 USC § 2000e-5(b). Second, Fourth, Fifth, Sixth, Tenth and Eleventh Circuits recognize affirmative defense. Standards differ slightly among the circumstances but all require evidence that that the EEOC attempted to conciliation in “good faith.” The Eleventh Circuit (along with the Second and Fifth) apply this test:

To satisfy the statutory requirement of conciliation, the EEOC must (1) outline to the employer the reasonable cause for its belief that Title VII has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256 (11th Cir. 2003).

Reasoning: • Statutory language did not support b/c makes “no expressed provision for an affirmative defense based on an alleged defect in the EEOC’s conciliation efforts”; • Determining merits of affirmative defense would run counter to statutory mandate that “all details of the conciliation process [remain] strictly confidential”; • The statute did not provide a “workable legal standard” for judicial review of the EEOC’s conciliation efforts; • The affirmative defense would undermine the purpose of conciliation because “the conciliation defense tempts employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court”; and • Even if the affirmative defense was supported by statute, consistent with the statute’s confidentiality mandate, provided a workable legal standard for judicial review, and served the purpose of facilitating resolution of EEOC charges, establishment of the defense would nevertheless not warrant dismissal since “[d]ismissal certainly is not required by the language of the statute” and the remedy for the wrong claimed—“insufficient process”—would be a “short stay to allow the parties pursue conciliation further.”

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