Since Maddox, Congress has amended the Rehabilitation Act and the ADA several times, but the distinction between the causation standards used by the two laws persists . . . . That leaves us with two laws with two distinct causation standards."But the court splits 9-7 on the proper causation standard, with a bare majority holding that the ADA discrimination provisions are governed by the "but for" standard of Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), instead of the lower-threshold "motivating factor" standard of Title VII. The plaintiff had sought an instruction that disability need only constitute a "motivating factor," borrowing from Title VII, 42 U.S.C. § 2000e-2(m) and 42 U.S.C. § 2000e-5(g)(2)(B)).The court majority holds that the ADA did not incorporate the more-liberal Title VII standard of liability, citing Gross and the Seventh Circuit: "No matter the shared goals and methods of two laws, it explains that we should not apply the substantive causation standards of one antidiscrimination statute to other anti-discrimination statutes when Congress uses distinct language to describe the two standards. Just as we erred by reading the 'solely' language from the Rehabilitation Act into the ADA based on the shared purposes and histories of the two laws, supra at 7, so we would err by reading the 'motivating factor' language from Title VII into the ADA. Shared statutory purposes do not invariably lead to shared statutory texts, and in the end it is the text that matters.

The Seventh Circuit then remanded the case back to the District Court for proceedings consistent with the opinion of the Supreme Court.The EEOC subsequently renewed its motion for partial summary judgment on Mach Mining’s affirmative defense of failure to conciliate, arguing that it had sufficiently demonstrated attempting conciliation with Mach Mining, and compliance with 42 U.S.C. § 2000e-5(b). The EEOC also filed two motions to strike, arguing in the first motion that a portion of Mach Mining’s opposition to summary judgment revealed confidential information about the conciliation process in derogation of 42 U.S.C. § 2000e-5.

Accordingly, Title VII requires the EEOC to “endeavor to eliminate [an] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” (42 U.S.C. § 2000e–5(b).) These efforts are a necessary precondition to filing a lawsuit; only if the EEOC is “unable to secure” an acceptable conciliation (settlement) agreement may EEOC file a lawsuit against the employer.

The Supreme Court unanimously holds that a lawsuit commenced by the EEOC cannot be dismissed simply based on an employer's argument that the agency did not try hard enough to conciliate the claim before filing under 42 U.S.C. § 2000e-5(b). The Court spells out the limited proof permitted on a defense of non-exhaustion, and concludes that the remedy is not dismissal, but instead remand to the agency for further settlement efforts.

Below, we summarize Title VII law and the Davis decision and what this decision means (and doesn’t mean) for employers.Title VII and the Charge-Filing Precondition to SuitTitle VII requires an aggrieved worker, or someone on the worker’s behalf, to file a charge of discrimination with the EEOC within 180 days after the alleged unlawful employment practice occurred. See 42 U.S.C. § 2000e-5(b), (e)(1). Where an alleged unlawful employment practice occurred in a state or political subdivision that authorizes a state or local authority (collectively “agency”) to grant or seek relief from such practice, a complainant must file his or her charge with the agency first, within 300 days after the alleged unlawful employment practice occurred.

Mach Mining raised an affirmative defense that the EEOC had failed to undertake reasonable efforts to negotiate a pre-lawsuit resolution. The basis for this defense comes directly from a provision in Title VII itself, which provides in relevant part that: “If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion” 42 U.S.C. § 2000e-5(b). The statute further provides that the EEOC may sue only after it “has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.”

Title VII of the Civil Rights Act of 1964 contains this directive:If the Commission determines after such investigation that there is reasonable cause to believe the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion. 42 U.S.C. § 2000e-5(b). The EEOC may only file a lawsuit if “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.”

"While we respect the views of our colleagues in these circuits," the panel holds, "we also recognize our duty to decide our cases independently and to disagree when we must."EEOC v. Mach Mining Inc., No 13-2456 (7th Cir. Dec. 20, 2013):The EEOC filed a complaint in the Southern District of Illinois, alleging failure-to-hire because of sex, in violation of Title VII. The employer, Mach Mining, answered with an affirmative defense that the EEOC's case should be dismissed because the EEOC did not make a sincere and reasonable effort to negotiate a pre-filing resolution under 42 U.S.C. § 2000e-5(b). The provision at issue states that:"If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion."

Bullock v. Napolitano, No. 10-1222 (4th Cir. Jan. 23, 2012):The federal sector provision of Title VII, 42 U.S.C. § 2000e-16, states that a federal employee "may file a civil action as provided in section 2000e-5 of this title." 42 U.S.C. § 2000e-5 then states that "[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter." 42 U.S.C. § 2000e-5(f)(3).

Affirms most of the injunctive relief. Because relief was authorized on a finding of liability (42 U.S.C. § 2000e-5(g)(1); 42 U.S.C. § 12117(a)), courts put the burden on the employer to prove that the discrimination is unlikely to continue. The magistrate judge ordered that employer "(1) comply with the reasonable-accommodations requirement of the ADA for employees in the Central District of Illinois; (2) to notify the EEOC of any employee who requests an accommodation during the next three years in the Central District of Illinois; and (3) to maintain complete records of its responses to such accommodation requests."