EEOC Publishes Final Rule Amending Conciliation Process

The Equal Employment Opportunity Commission (EEOC) on January 11 published its Final Rule amending procedural rules for its 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.

This Final Rule is the culmination of the rulemaking process that began on October 9, 2020 when the EEOC issued a Notice of Proposed Rulemaking. As noted in our prior LawFlash, the stated goal of the now Final Rule is to enhance the effectiveness and accountability of the conciliation process, by promoting efficiency and transparency and better encouraging a negotiated resolution when possible. The Final Rule responds to longstanding complaints by employers about the conciliation process, including complaints about a 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.

To address such concerns, the Final Rule now requires that in any conciliation, EEOC will provide the respondent with all of the following:

• A written summary of the known facts and non-privileged information that the EEOC relied on in its reasonable cause finding, including identifying known aggrieved individuals, unless the individual(s) has requested anonymity. And, in the event 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.
• A written summary of the EEOC’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts.
• The basis for any requested monetary or other relief, including the calculations underlying the initial conciliation proposal and an explanation thereof in writing.
• If there is a designation at the time of the conciliation, a writing identifying the case as systemic, class, or pattern or practice and the basis for the designation.
• At least 14 calendar days to respond to the initial conciliation proposal from the EEOC.

Notably, the Final Rule removed a provision from the proposed rule that would have required the EEOC to share with the respondent all information that weighed against a reasonable cause finding. The EEOC explained that it removed this provision out of concern "about the potential for collateral challenges that this requirement may create."

As the presidential administration is changing next week, there may be activity in Congress seeking to repeal the Rule under the Congressional Review Act. Morgan Lewis will monitor and report on any such developments.

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W. John Lee

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Washington, DC
Sharon Masling
Grace Speights