In its 2014-2015 term, the Supreme Court will decide whether courts have the authority to review the Equal Employment Opportunity Commission’s (EEOC) conciliation efforts prior to bringing suit. This decision will bring much needed guidance to courts about whether failure to satisfactorily conciliate EEOC claims is a viable affirmative defense (a defense in which the defendant introduces evidence, which would negate liability, even if the defendant committed the alleged acts).
In most circuits, an employer may affirmatively defend itself against a lawsuit brought under Title VII if the EEOC has failed to properly engage in the conciliation process. However, each circuit has adopted different standards for evaluating whether the EEOC’s conciliation efforts are substantial with no clear legal standard triumphing.
