EEOC Proposes Changes to Its Conciliation Process to Provide More Information to Employers

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The Equal Employment Opportunity Commission has issued a Proposed Rule to amend its conciliation process, for the stated purpose of enhancing its effectiveness and accountability in resolving findings of unlawful discrimination by employers.

Background. Under Title VII, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act, employees may file a charge of discrimination with the EEOC, and if the EEOC finds reasonable cause to believe discrimination exists, it must then attempt to resolve the matter through conciliation. Over the years, there have been challenges to the adequacy of the EEOC’s conciliation process, culminating in the 2015 case, Mach Mining, LLC v. EEOC, in which the Supreme Court laid out certain requirements for the process while noting the EEOC’s “wide latitude” and “expansive discretion” over the conciliation process. Thus, the EEOC asserts, “Recognizing this power, it is important that the Commission clearly articulate the steps of the conciliation process so that the parties understand what to expect.”

The Proposed Rule. The EEOC proposes that it will provide the following in any conciliation:

  1. A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that it is anticipated that a claims process will be used subsequently to identify aggrieved individuals, the criteria that will be used to identify victims from the pool of potential class members;
  2. A summary of the Commission’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts, as well as non-privileged information it obtained during the course of its investigation that raised doubt that employment discrimination had occurred;
  3. The basis for any relief sought, including the calculations underlying the initial conciliation proposal; and
  4. Identification of a systemic, class, or pattern or practice designation.

The EEOC further proposes that respondents will have 14 days in which to respond to any conciliation proposal.

Next Steps. The EEOC seeks public comment on the proposed provisions above, as well as whether the required disclosures must be made in writing. The EEOC has set an expedited 30-day period for public comment on its proposed Rule, rather than the usual 60 days. Comments may be submitted here until November 9, 2020. Once the comment period has closed, the EEOC will review the comment and may make revisions before issuing the Final Rule.