EEOC Modifies Conciliation Process to Encourage Pre-Lawsuit Resolutions
The Equal Employment Opportunity Commission (“EEOC”) released a proposed rule with modifications to its pre-lawsuit “conciliation” process, intended to encourage resolving employment discrimination actions with employers before the EEOC files them in court.FN1 These proposed amendments mark a shift for the EEOC, which historically has elected not to adopt detailed regulations to govern its conciliation efforts to retain flexibility over the conciliation process.
EEOC conciliation, a prerequisite to an EEOC suit under Title VII of the Civil Rights Act where the EEOC has found reasonable cause to believe the employer engaged in discriminatory or retaliatory conduct, is an informal and confidential process in which the agency attempts to seek voluntary compliance from employers before suing them. The proposed rule identifies information that the EEOC will make available to employers who opt to participate in conciliation that would make it more likely that employers will have a better understanding of the EEOC’s position, including:
a summary of known facts and nonprivileged information that led the EEOC to conclude there is reasonable cause to believe unlawful bias, harassment or retaliation occurred, including identifying the individuals or groups of people who brought allegations unless they ask to stay anonymous;
a summary of the EEOC’s legal basis for finding reasonable cause that discrimination occurred, including an explanation as to how the law was applied to the facts. In cases where the EEOC obtained material information during its investigation that caused it to doubt there was reasonable cause, the EEOC will provide an explanation of how it was able to determine there was reasonable cause despite this information;
the basis for monetary or other relief, including calculations underlying the initial conciliation proposal and an explanation thereof; and
whether the EEOC has designated the case as systemic, class, or pattern or practice, as well as the basis for the designation.
The new modifications also include providing the employer at least 14 calendar days to respond to the EEOC’s initial conciliation proposal.
TAKEAWAY
The EEOC’s modifications to the conciliation process will allow employers to better understand the EEOC’s position in conciliation and weigh whether they want to move forward with litigation. Publication of the EEOC’s proposed rule begins a 30-day period in which the Commission requests public comment on the changes to the conciliation process. Specifically, the EEOC has indicated that it is particularly interested in feedback about whether the modifications "will result in additional challenges" to its conciliation efforts, and whether those potential challenges "would delay or adversely impact litigation" the agency lodges against employers. The EEOC has also requested feedback on whether it should be required to make disclosures in writing or whether oral disclosures are sufficient. Please contact Campbell Litigation, P.C. for questions or feedback about the EEOC’s proposed rule.