Confidentiality. Transparency. Clear and substantive bases for a finding of reasonable cause. Prompt resolution that avoids drawn-out and costly litigation. All of this sounds like a win-win for employers and employees looking for efficient avenues to resolve conflicts. That, at least, is what the U.S. Equal Employment Opportunity Commission (EEOC) promises with its newly updated process for conciliation. The EEOC announced on Jan. 11, 2021, that it had received approval to forward its final rule, which updates its conciliation procedures, to the Federal Register. The final rule, which will go into effect 30 days after its publication, requires the EEOC to set forth the factual and legal bases for its determination that there is reasonable cause to believe that discrimination has occurred.
Conciliation, an informal and confidential process of resolving matters prior to the EEOC taking the matter to litigation, is already an option for respondents who receive findings of reasonable cause by the EEOC. Conciliation offers the EEOC and the respondent an opportunity to negotiate a mutually agreeable resolution to a matter, typically involving monetary and injunctive relief, before the filing of litigation. However, there must be a clear, uniform process to be followed.
At the moment, one third of respondents refuse to participate in conciliation after a finding of reasonable cause. The EEOC's goal in updating its conciliation procedures is to encourage respondents to participate by increasing uniformity in the process, making it more transparent in order to encourage voluntary cooperation and avoiding the delays in resolution that so often accompany litigation.
Specifically, the new rule requires the EEOC to provide the essential facts and the law supporting the claim, the EEOC's findings and its demand for monetary relief. Requiring this basic level of transparency will encourage respondents to participate in the process and will "directly facilitate voluntary prospective remedial action regarding the policy or practice." It will also provide a "guidepost for the Commission to follow in meeting its conciliation obligations" as set forth by the U.S. Supreme Court in Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), holding that courts may engage in limited review of whether the EEOC fulfilled its duty to attempt conciliation. The final rule describes conciliation as advantageous to all parties: "[B]y eliminating such discriminatory practices without litigation, the Commission accomplishes its primary statutory objective in conciliation to purge unlawful discrimination in employment. Moreover, by providing information regarding the basis for the Commission's findings and demands, the respondent will be able to more effectively assess its potential liability. This increased information will enhance the conciliation process for all parties to conciliation and may focus discussions in a way more likely to achieve a meeting of the minds or, alternatively, clearly distill areas of disagreement that may aid the Commission in subsequent litigation."
Takeaways for Employers
Following the revision of the EEOC's conciliation procedures, employers faced with a reasonable cause finding from the EEOC should consider conciliation to effectively resolve matters in a time- and cost-efficient manner. With clear ground rules to govern the conduct of both parties, employers and the EEOC can achieve a swift, confidential resolution of claims, with violations promptly corrected, litigation avoided and workplace equality advanced.