Title VII provides that, once the EEOC makes a “cause” finding against an employer, the EEOC must go through the process of “conciliation” with the employer prior to bringing suit. This provision in Title VII allows the EEOC and the employer an opportunity to resolve the matter prior to expensive and time-consuming litigation. As of late, the EEOC has been called on the carpet by some courts that viewed the EEOC’s conciliation efforts to be less-than-sincere, and in some instances downright obstructionist. Some courts have concluded that the EEOC is barred from litigating claims or seeking certain remedies when it fails to conciliate in good faith. The EEOC recently tried to end-run such decisions by arguing that its conciliation efforts are not subject to review by the courts, and are therefore immune from scrutiny of any kind. The court in that case did not bite, and in fact ruled twice that the bona fides of the EEOC’s conciliation efforts are subject to judicial review. The court ultimately concluded that this issue is worthy of immediate review by the Seventh Circuit Court of Appeals, and certified an immediate appeal to that court.
In an era of widely-publicized criticism of extremism and activism by federal agencies in the employment arena, the EEOC’s “can’t touch us” attitude is to be expected, but the courts will ultimately decide for whom the bell tolls.