EEOC Issues Proposed Rule on Conciliation

The Equal Employment Opportunity Commission (EEOC) issued a Notice of Proposed Rulemaking (NPRM) on October 9 to amend its procedural rules regarding the conciliation process. EEOC is statutorily required to engage in the conciliation process whenever it finds reasonable cause to believe that discrimination has occurred, and it may not commence litigation prior to engaging in the conciliation process.

According to EEOC, the goal of the proposed rule is to enhance the effectiveness and accountability of the conciliation process, by enhancing efficiency and transparency and better encouraging a negotiated resolution when possible. Through the rulemaking process, EEOC is seeking feedback on “whether these proposed amendments will result in additional challenges to the Commission’s conciliation efforts, and whether such challenges would delay or adversely impact litigation brought by the Commission.”

The proposed rule responds to longstanding complaints by the employer community regarding the conciliation process, including complaints about the lack of transparency in the process, inconsistencies between EEOC offices in how they conduct conciliations, and EEOC’s failure to disclose information regarding the basis for its findings or its demands for monetary relief. According to EEOC data, approximately one-third of respondents (employers charged to have engaged in discrimination) decline to participate in conciliation, and less than half (41%) of all EEOC’s conciliations are successful.

To address such concerns, the proposed rule requires that in any conciliation, EEOC will provide the respondent the following:

1. A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that it is anticipated that a claims process will be used subsequently to identify aggrieved individuals, the criteria that will be used to identify victims from the pool of potential class members
2. A summary of the Commission's legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts, as well as any non-privileged information it obtained during the course of its investigation that raised doubt that employment discrimination had occurred, but was not sufficient to dissuade EEOC from finding reasonable cause with regard to the charge
3. The basis for any relief sought, including the calculations underlying the initial conciliation proposal sent by the EEOC to the respondent
4. Identification of a systemic, class, or pattern or practice designation, and the basis for the designation
5. At least 14 calendar days to respond to the initial conciliation proposal from the Commission

Note that this rule is only proposed. Members of the public have 30 days –until November 9, 2020 – to comment on the NPRM. Once the comment period closes, EEOC will review and analyze all comments and issue a final regulation. In response to the comments it receives, EEOC may modify its proposal before publishing a final rule.

Our expectation is that EEOC will try to issue the final regulation prior to any potential change in administration. If the administration does change, there are various avenues by which the final regulation could be slowed down or simply not approved. Even if the regulation is finalized, it could be subject to repeal under the Congressional Review Act. Morgan Lewis will monitor and report on any such developments.

Contacts

If you have any questions about the NPRM, or if you wish to submit comments on the proposed rule and would like assistance in drafting them, please contact any of the Morgan Lewis attorneys listed below:

Chicago
Sari Alamuddin

New York
David McManus

Philadelphia
Michael Burkhardt

Washington, DC
Sharon Masling
Grace Speights