On June 24, 2021, the U.S. House of Representatives voted to overturn a formal rule that imposed heightened information sharing requirements on the Equal Employment Opportunity Commission (“EEOC”) during the EEOC's conciliation process. The Senate has already voted to repeal the rule. The bill will now be sent to President Biden, who is expected to sign it into law.
Where the EEOC finds reasonable cause to believe discrimination has occurred, Title VII requires the agency to attempt to resolve the case before filing a lawsuit. This process is called “conciliation.” Conciliation is an informal, confidential, and entirely voluntary process, where the EEOC, the Charging Party and the employer explore settlement. During the Trump Administration, the EEOC was required to turn over more information to employers during conciliation. This new law permits the EEOC to withhold information regarding the basis for its findings.
The EEOC advocated for a roll-back of employers' ability to gain more information during the conciliation process. “Conciliation is a critical tool to help protect the civil rights of America's workers,” said EEOC Chair Charlotte A. Burrows. “The action by Congress restores the Commission's flexibility to tailor the conciliation process to the facts and circumstances of each case, thus increasing the likelihood of a successful resolution.”
In practice, employers should be prepared to expect less information during the conciliation process and be faced with the prospect of negotiating a settlement with incomplete disclosure. This development underscores why employers should work with their employment counsel to ensure that their position statements and responses to the EEOC's requests for information during the EEOC's investigation are carefully drafted to fully state the employer's position and law supporting that position.
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