The Best Offense Is a Good Defense: Examining Failure to Conciliate as an Affirmative Defense in Employment Discrimination Cases Brought By the EEOC
Prior to bringing suit on behalf of an employee, the Equal Employment Opportunity Commission must follow specific procedural requirements and must engage in conciliation. The purpose of conciliation is for opposing parties to avoid the court system by encouraging out-of-court settlements. Employers in the majority of circuits can argue failure to conciliate as an affirmative defense when employers feel the Commission has failed its duty to conciliate. However, the United States Court of Appeals for the Seventh Circuit recently held that conciliation efforts are not judicially reviewable and as such cannot be raised as an affirmative defense.
This Comment will explain why a minimal review of conciliation efforts is necessary, and Congress should amend Title VII of the Civil Rights Act of 1964 (“Title VII”) to provide courts the power to sanction the Commission or an employer that does not engage in good faith in conciliation. A minimal review of conciliation efforts is the proper standard because it provides the Commission with deference to determine the appropriate conciliation agreement in the circumstances, but also provides an incentive for the parties to conciliate properly the first time. Furthermore, Congress should amend 42 U.S.C. § 2000e-5(f) to provide that a party who has engaged in bad faith conciliation may have to pay the other party’s attorney’s fees or negotiation costs. A minimal review of conciliation procedures and a statutory amendment are the best way to ensure the statutory requirements are meaningfully followed.
Blair P. Keltner,
The Best Offense Is a Good Defense: Examining Failure to Conciliate as an Affirmative Defense in Employment Discrimination Cases Brought By the EEOC,
S. Ill. U. L.J.
Available at: https://opensiuc.lib.siu.edu/siulj/vol39/iss3/4