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Hastings Law Journal

Abstract

On June 30, 2014, the Supreme Court granted certiorari in Mach Mining, LLC v. Equal Employment Opportunity Commission (“EEOC”). The issue before the Court is “[w]hether and to what extent [a court may] enforce the EEOC’s mandatory duty to conciliate discrimination claims before filing suit.” The Court’s decision will likely resolve a three-way circuit split on how the EEOC’s conciliation efforts may be reviewed: currently, the Second, Fifth, and Eleventh Circuits require the EEOC to meet a searching three-step test, while the Fourth, Sixth, and Tenth Circuits apply a more deferential “good faith” standard. The Seventh Circuit created the third split with its decision in Mach Mining. It stands alone in holding that the failure to conciliate is not an implied affirmative defense and there is no judicial review of conciliation. This Note argues that the Supreme Court should resolve the circuit split in favor of the good faith standard, adopting a procedural rather than substantive form of review.

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