Chicago, Ill. (October 22, 2020) - In an extremely positive, long overdue development, the Equal Employment Opportunity Commission (EEOC) recently proposed amendments to its procedural rules to increase the effectiveness of its conciliation process after the federal agency finds reasonable cause on an administrative charge of discrimination.

Under section 706 of Title VII of the Civil Rights Act of 1964, Congress required the EEOC to “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”  In other words, the EEOC may only commence a civil action against an employer if it has not been able to secure a conciliation agreement after proceeding with conciliation in good faith. 

Over the years, many employers have found that the EEOC merely “checked off a box” confirming it had asked a respondent-employer whether it would like to first conciliate and then subsequently file suit if the employer did not agree to an EEOC conciliation proposal as written (ultimately declaring that “conciliation failed”).  The proposed rulemaking would amend the procedural conciliation regulations governing Title VII, Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and Age Discrimination in Employment Act (ADEA) cases by outlining steps that the EEOC should and must take in the conciliation process. The EEOC's efforts to enhance efficiency and transparency in the conciliation process are intended to increase negotiated resolutions, when possible.

The EEOC is now proposing to provide useful information to assist the employer in making an early informed choice of whether  to resolve a matter.  If amended, the EEOC would provide the following categories of information:

  1. A written summary of the facts and non-privileged information that the EEOC relied on in its “reasonable cause” finding, including identifying known aggrieved individuals for whom relief is being sought, unless those individuals have requested anonymity, possibly the identity of harassers, supervisors or other relevant individuals, as well as potential putative class size;
  2. A summary of the EEOC's legal basis for finding reasonable cause, including an explanation as to how it applied the law to the facts in the charge. If there was material information that the EEOC obtained which cast doubt on finding reasonable cause, the EEOC would also explain its reasoning despite potentially exculpatory information. At its discretion, the EEOC might also provide a response to any defenses raised by the employer;
  3. The basis for monetary or other relief, including any underlying calculations for its initial conciliation proposal; and
  4. Whether the EEOC has designated the charge as systemic, class, or pattern and practice, and the basis for that designation. 

The EEOC would provide a respondent-employer at least 14 days to respond to the EEOC's initial conciliation proposal with the supporting detail. The EEOC would also provide a copy of the exact same information to the charging party and other aggrieved individuals upon request.

Click here for complete information. The EEOC is welcoming comments on the Proposed Rule through November 9, 2020. On its face, these proposed changes would certainly bolster the conciliation process, leading it to be a more robust and authentic effort by the EEOC to resolve charges before litigation ever commences.

Originally published by Lewis Brisbois, October 2020

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