EEOC Proposes Rules to Enhance Conciliation

Plus, the Commission may sue only if it can’t secure from the employer an acceptable conciliation agreement.

The EEOC favors conciliation. Of late, however, it has successfully conciliated just over 40% of the charges for which it found reasonable cause.

So, on October 9, the EEOC proposed information disclosure requirements, designed to “make it more likely that employers have a better understanding of the EEOC’s position in conciliation and, thus, make it more likely that the conciliation will be successful… .”

Under the proposal, in each conciliation, if it has not already done so, the Commission will give the employer:

• a summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in prospective class proceedings, the Commission’s contemplated criteria for identifying victims from the pool of potential class members;
• a summary of the Commission’s legal basis for finding reasonable cause, including how it applied the law to the facts and any exculpatory non-privileged information that it obtained during its investigation;
• the basis for any relief that the Commission seeks, including the calculations underlying its initial conciliation proposal; and
• a description of any systemic, class, or pattern or practice designation.

Employers will, under the proposal, have at least 14 calendar days in which to respond to the Commission’s initial conciliation proposal.

The contemplated regulations will apply to each statute that the Commission enforces – Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Non-discrimination Act.

And, the Commission believes that those regulations, if adopted, will benefit employees and the economy.

“With respect to employees, an increase in successful conciliations will result in more employees receiving remedies for the discrimination they suffered and/or within an accelerated timeframe. Many employees who receive reasonable cause findings are unable to obtain any relief without conciliation because they do not pursue litigation for fiscal, emotional, or other reasons, or even if they do pursue litigation, ultimately do not attain relief. Even employees who ultimately would otherwise be successful in litigation may benefit from a conciliation agreement because they would then receive remedies sooner and avoid the time, cost, stress, and uncertainty of litigation.

Employers will also receive a net benefit from the EEOC conciliating cases more successfully. In some cases, conciliation agreements may provide an opportunity for employers to more quickly correct any discriminatory conduct or policies and seek compliance assistance from the EEOC. Additionally, while employers pay $45,46611 on average to settle cases in conciliation, they will save resources and money by avoiding litigation… . .

Resolving more cases through conciliation will be beneficial to the economy as a whole because the litigation costs that the parties save can be put towards more productive uses, such as expanding businesses and hiring more employees… .

[I]f the Commission successfully conciliated only 100 more cases each year, which would save the economy over $4 million in litigation costs.”

The Commission has invited interested parties to submit comments concerning its proposal, identified by Regulatory Information Number (RIN) 1235-AA34. Comments are due by November 8, 2020, and they must be submitted in one of four ways:

• Electronically through the Federal eRulemaking Portal at http://www.regulations.gov;
• FAX (six pages or fewer) to 202-663-4114;
• Mail to Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507; or
• Hand Delivery/courier to Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507.