Back in November, we alerted employers to a proposed big change at the Equal Employment Opportunity Commission (EEOC) - one with the potential to bolster its conciliation process and work more closely with employers to avoid active litigation. Prior to the proposed rule, the EEOC's conciliation process was rarely utilized, and any EEOC finding of reasonable cause of discrimination against an employer almost inevitably led to litigation. The new rule is finally here and promises to benefit employers seeking to resolve workplace issues without the disruption and expense of litigation.

In welcome news for employers, on January 11, 2021, the EEOC adopted its final rule updating its conciliation procedures for the first time in more than 40 years. The rule is designed to ensure transparency, consistency, and fairness in the conciliation process between employers and the EEOC. Best of all, the process is informal and confidential, and can help employers to improve the workplace and address specific grievances with less risk of litigation. Specifically, the new rule requires the EEOC to provide key information to employer-respondents, so that the employers have the information they need to work with the EEOC. 

Per the final rule, the EEOC must now:

  • Provide a written summary of the known facts and non-privileged information upon which it relied in its reasonable cause finding, including the identification of known aggrieved individuals for whom relief is being sought (unless anonymity was requested);
  • Provide a written summary of the legal basis for finding reasonable cause, including an explanation of how the law was applied to the facts;
  • Provide the basis for monetary or other relief, including the calculations underlying the initial conciliation proposal and a written explanation;
  • Advise the respondent in writing that it has designated the case as systemic, class, or pattern or practice, as well as the basis for the designation; and
  • Provide the respondent at least 14 calendar days to respond to the initial conciliation proposal. 

Through this new rule, the EEOC must now actively assist employers who desire to engage in conciliation rather than forcing employers to work without the information needed to make real, impactful change, while also avoiding protracted litigation.

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