Labor & Employment Law Daily EEOC final rule mandates disclosures that must be made to respondents in conciliation
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Thursday, January 14, 2021

EEOC final rule mandates disclosures that must be made to respondents in conciliation

By Pamela Wolf, J.D.

The final version makes only a few changes from the proposed rulemaking.

The EEOC has released a copy of its previously approved final rule updating the antidiscrimination agency’s conciliation procedures. On January 11, 2021, the EEOC forwarded the “unofficial” final rule, which has been cleared by the Office of Management and Budget, to the Federal Register. The final rule will be effective 30 days after publication.

The Commission believes that the changes made to its conciliation procedures will bring more clarity, transparency, and consistency to the conciliation process. They will also encourage more respondents to participate and the Commission to better articulate its positions at the start of conciliation.

Conciliation obligations. The final rule sets out procedures that the EEOC believes will support the its ability to meet statutory obligations to attempt to conciliate, i.e., to “tell the employer about the claim—essentially, what practice has harmed which person or class—and provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance,” as required by the Supreme Court in its 2015 ruling in Mach Mining, LLC v. EEOC. There, the Court noted that conciliations “necessarily involve communication between parties, including the exchange of information and views.

The final rule “ensures that the Commission’s exchange of information occurs in an open, transparent manner,” the EEOC said. “These changes should make the conciliation process more successful and, in so doing, enhance the Commission’s fulfilment of its mission to eliminate unlawful discrimination in employment.”

Final rule disclosure requirements. The final rule updating the Commission’s conciliation procedures under Section 706 of Title VII will require the EEOC to provide to the respondent in any conciliation, if it has not already done so:

1. A summary of the facts and nonprivileged 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.
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 respondent participating in conciliation will have at least 14 calendar days to respond to the EEOC’s initial conciliation proposal.

The final rule also amends its ADEA regulations to add the same requirements to the ADEA conciliation process.

Changes from proposed version. The Commission made just a few changes from its October 9, 2020 proposed rule:

  • The requirement that disclosures be “written” is clarified to mean that all disclosures be made in in writing. However, in 29 C.F.R sections 1601.24(d)(3) and 1626.12(b)(3), the requirement that the disclosure be in writing shall apply only to the initial conciliation proposal made by the EEOC.
  • The final rule will only apply to conciliations for charges for which a Letter of Determination invitation to engage in conciliation has been sent to respondent on or after the effective date of the final rule.
  • The Commission has removed any requirement that it disclose material information that caused it to doubt its determination of reasonable cause. This is due to concerns about the potential for collateral challenges that this requirement may create.

Increasing conciliation effectiveness. The EEOC noted that despite its efforts to promote voluntary resolutions, its conciliation efforts resolve less than half of the charges in which the evidence supports a finding of discrimination. Through the final rule, the Commission says it outlines its responsibilities in the conciliation process to fulfill its Congressional mandate and to increase the effectiveness of its efforts to achieve cooperation and voluntary compliance.

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