Labor & Employment Law Daily EEOC proposes four new conciliation procedure requirements
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Tuesday, October 13, 2020

EEOC proposes four new conciliation procedure requirements

By Pamela Wolf, J.D.

The Commission has previously opted not to adopt such detailed requirements, believing that flexibility would more effectively accomplish its goal of preventing and remediating employment discrimination.

The EEOC proposes to amend its procedural rules governing the conciliation process in a manner that the Commission believes will provide greater clarity to the conciliation process, enhance the effectiveness of the process, and ensure that the Commission meets its statutory obligations. The Commission approved the proposal on August 18, 2020. The proposed rulemaking was published in the Federal Register on October 9, 2020, kicking off a short, 30-day comment period that is in step with the abbreviated comment periods designated by other federal agencies as Election Day and the end of the presidential term approach.

Conciliation efforts reaping poor results. The Commission noted that historically, it has not adopted detailed regulations to govern its conciliation efforts, believing that retaining flexibility over the conciliation process would more effectively accomplish its goal of preventing and remediating employment discrimination. The Commission still believes in the importance of maintaining a flexible approach to conciliation, and it has broad latitude over what it offers and accepts in conciliation. However, notwithstanding the EEOC’s efforts, including extensive training efforts, its conciliation efforts resolve less than half of the charges where a reasonable cause finding has been made.

Between fiscal years 2016 and 2019, only 41.23 percent of the EEOC’s conciliations were successful, according to the Commission. Although this is a slight improvement over the previous four fiscal years, the Commission is successfully achieving Congress’s “preferred means” of eliminating employment discrimination less than half the time.

Further, “the Commission estimates that one third of respondents (employers) who receive a reasonable cause finding decline to participate in conciliation.” Although there may be various reasons why a respondent decides not to participate in conciliation, “such a widespread rejection of the process suggests a broadly held view that the process does not meet its full potential in providing value to all parties,” the Commission said. These results have led the Commission to conclude that a change in approach is necessary.

Fulfilling Congressional mandate. The Commission said that through this rulemaking, it is “choosing to exercise its ‘wide latitude’ to fulfill its Congressional mandate of ending employment discrimination through ‘cooperation and voluntary compliance’ by clearly outlining the steps necessary to carry out its statutory conciliation responsibility.”

Proposed requirements. The Commission proposes to require that in any conciliation the EEOC will provide to the respondent, 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, as well as non-privileged information it obtained during 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 proposed rule would specify that the respondent participating in conciliation would have at least 14 calendar days to respond to the EEOC’s initial conciliation proposal.

Same process under the ADEA. The Commission also proposes to amend its ADEA regulations to add the same requirements to the ADEA conciliation process.

Comments. The EEOC is seeking comments on all its proposed requirements, and specifically, whether it should specify that its disclosures must only be done in writing, or if it should allow for oral disclosures as well.

Details for submitting comments are provided in the EEOC’s proposed rulemaking notice.

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