In this case the EEOC found reasonable cause on a charge that an employer refused to hire an applicant because of her gender.? ?The EEOC began conciliation proceedings.?? Almost a year later, the EEOC told the employer that conciliation had failed and it filed suit in federal district court. The employer argued the EEOC had failed to conciliate in good faith. ?The EEOC moved for summary judgment saying there was no such affirmative defense.?? The district court disagreed ?but ?certified ?the? matter? for interlocutory appeal.?? The Seventh Circuit ruled failure to conciliate was not a legally viable affirmative defense.? ?The Supreme Court has granted certiorari to resolve a split in the circuits. The Second, Fifth and Eleventh circuits allow for the defense.

Mach Mining LLC v. EEOC, — S. Ct. — (6/30/14)