Labor & Employment Law Daily Democratic lawmakers probe EEOC Chair Janet Dhillon’s reported conciliation pilot
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Friday, June 26, 2020

Democratic lawmakers probe EEOC Chair Janet Dhillon’s reported conciliation pilot

By Pamela Wolf, J.D.

Purportedly, the Chair implemented the pilot without consideration of the full Commission, and while it would ease employer burdens, the pilot would undermine the core purpose of ending workplace discrimination.

Senator Patty Murray (D-Wash.) and Congressman Bobby Scott (D-Va.) are pressing EEOC Chair Janet Dhillon to halt the implementation of what they called her “partisan plan to weaken the EEOC’s ability to hold employers accountable for workplace discrimination by overhauling the conciliation process.” The lawmakers are referring to a pilot, reportedly initiated on May 29 and expected to run at least six months, that has been detailed by media outlets but not by the EEOC. Murray and Scott are concerned that the piloted plan would put unnecessary hurdles on those charged with investigating and addressing workplace discrimination in an effort to ease the burden of enforcement actions on employers.

Dhillon unilaterally implemented the pilot without the consideration of all of the other EEOC Commissioners, as the lawmakers understand it. “To ensure the EEOC remains accountable, and its policies seek to further, not undermine, its mission, we request detailed information on the pilot and urge you to suspend its implementation until the Commission has had an opportunity to examine it,” Murray and Scott wrote in a June 22 letter to the EEOC Chair.

Remember Mach Mining? The letter cites the seminal case affirming the importance and breadth of EEOC’s conciliation authority under Title VII—the Supreme Court’s 2015 Mach Mining v. EEOC decision. The lawmakers said: “the Supreme Court made clear that Title VII’s ‘conciliation provision explicitly serves a substantive mission: to “eliminate” unlawful discrimination from the workplace.’” Further, “Title VII’s conciliation mandate requires the EEOC only ‘inform the employer about the specific discrimination allegation’ by ‘describ[ing] both what the employer has done and which employees (or what class of employees) have suffered as a result,’ and the agency ‘try to engage the employer in some form of discussion.’”

This latitude, according to Murray and Scott, is so that the EEOC “can conduct the conciliation process in the way best suited to address the unlawful discrimination allegations brought before it.”

Easing employer burden not conciliation purpose. As reported, however, the conciliation pilot “would impose additional hurdles on EEOC field investigators and attorneys that appear to serve only to ease an alleged burden on employers,” as the lawmakers see it. “If the reporting is true, the pilot could undermine the conciliation process’s substantive purpose of ending workplace discrimination, in direct conflict with the spirit and text of Title VII.”

The changes to the conciliation process would make it harder for EEOC investigators and attorneys to fight for better settlement outcomes for workers or initiate lawsuits when warranted, Murray and Scott noted.

Information request. The Democratic lawmakers asked Dhillon to provide the following information about the pilot program:

  • A detailed explanation, as well as any responsive written documents, of why Dhillon decided to create this pilot, including any entities within and outside of EEOC that she consulted prior to doing so.
  • A detailed explanation, as well as any responsive written documents, of the pilot and how it will modify the conciliation process as it existed before this pilot, including details about the scope, design, and timeline of this pilot, and any consideration of permanent implementation such as through regulation.
  • A detailed explanation, as well as any responsive written documents, of why Dhillon decided not to consult with all the Commissioners in creating this pilot.
  • A detailed explanation, as well as any responsive written documents, of efforts to change the conciliation process since Mach Mining and prior to the development of the pilot, including details on the process for considering these proposals and why they were not implemented.

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