Key Takeaways:

• The EEOC is considering measures to increase transparency with employers in its conciliation process

• Employers and other interested members of the public will have the opportunity to provide input and comment on the proposed rule following its publication in the Federal Register

• This proposal, in conjunction with the EEOC’s two pilot programs on mediation and conciliation, indicate the EEOC’s increased focus on promoting the voluntary resolution of discrimination claims

• If adopted, the proposed rule has significant implications for the litigation of matters not resolved through conciliation, including pre-litigation discovery of facts, witnesses, and alleged damages

The Equal Employment Opportunity Commission (EEOC) has voted to move forward with the rulemaking process to implement considerable changes to the EEOC’s conciliation procedures. Under Title VII, after issuing a finding of reasonable cause of employment discrimination, the EEOC is required to attempt resolution through informal conciliation methods with an employer before pursuing litigation. The conciliation process has long been the object of criticism by employers and their counsel based on a perceived lack of effort by the EEOC to meaningfully attempt resolution and the EEOC’s unwillingness to share the information gathered in its investigation in support of its conciliation demands. According to the EEOC’s data over the past eight fiscal years, only about 40 percent of charges of discrimination where a reasonable cause finding has been issued are successfully resolved through conciliation efforts.

During its August 18, 2020, public meeting on a Notice of Proposed Rulemaking (NPRM) to amend its procedures governing conciliation, the EEOC voted 2-1 to approve the NPRM, sending it to the U.S. Office of Management and Budget for approval. Once approved, the text of the proposed rule will be published in the Federal Register for public comment and input by employers, advocates, and other interested parties.

While the EEOC has not yet released the specific language of the proposed rule, it made clear in a public meeting that the new rule would require the EEOC to provide to employers the following information during the conciliation process:

1. A written summary of the facts and non-privileged information on which the EEOC based its reasonable cause finding, including the identification of witnesses and known aggrieved individuals, unless these individuals have requested anonymity;
2. A summary of the EEOC’s legal basis for determining reasonable cause and its application of the law to the facts of the case;
3. The basis for any monetary and equitable relief sought by the EEOC in connection with the case, including the calculations supporting its initial conciliation proposal to the employer; and
4. Notification of whether the EEOC has designated the particular case systemic, class, or pattern and practice discrimination and the basis for said designation.

Should the NPRM become EEOC policy, the information-sharing guidelines enumerated above could facilitate more meaningful settlement negotiations during conciliation. Employers would be afforded a better understanding of the EEOC’s case instead of having to negotiate with little to no knowledge of the facts revealed in the EEOC’s investigation. In matters where conciliation is unsuccessful, the identification of facts, witnesses, potential litigants, and alleged damages can kick-start the discovery process even before litigation ultimately ensues.

Notably, this NPRM came quickly on the heels of the EEOC’s July announcement of two pilot programs for the EEOC’s alternative dispute resolution processes of mediation and conciliation. In announcing the Conciliation Pilot, the EEOC explained that the program was designed to renew the EEOC’s commitment to open communications between the agency and the parties. This recent focus on the EEOC’s alternative dispute resolution opportunities—and the announcement of efforts to make these programs more consistent and transparent agency-wide—indicate that resolution of employment discrimination claims through voluntary means is a current policy priority for the EEOC.

For more information on this proposed rule or how it could impact your business, contact:

• Caroline J. Berdzik
• Peter J. Woo
• Allegra A. Sinclair
• Kristin Klein Wheaton
• Or another member of the Employment and Labor practice