Thursday, January 7, 2021: EEOC Shuts Down Democrat Commissioners’ Objections to More Transparent Commission Conciliation Negotiations with Respondent Employers
The EEOC announced it approved via a remote meeting the Final Rule Updating the Commission’s Conciliation Procedures (see our WIR spotlighting the conciliation controversy), a formal Opinion Letter concerning Individual Coverage Health Reimbursement Arrangements (ICHRA) under the Age Discrimination in Employment Act (ADEA), and the Final Rule Amending the Commission’s Official Time Regulation for the Federal Sector (aimed at taking union officials off-the-clock).
Note: We will supply the Final Rule on the Commission’s new transparent Conciliation Procedures once the Rule becomes available, presumably later this week in time for next week’s WIR. The following information is from the EEOC press release. We have not reported on the Commission’s Final Rule Amending Official Time for union employees as not relevant to the private sector.
Final Rule Updating the Commission’s Conciliation Procedures
The new Final Rule reportedly will require the Commission in the future to increase the effectiveness of its efforts to achieve cooperation and voluntary compliance in ways reportedly set out in the Final Rule.
Congress instructed (under Section 706 of Title VII of the Civil Rights Act of 1964), and the SCOTUS agreed (see Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015)), that after the Commission finds reasonable cause for any charge, “the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”
However, the reality is that employers have found the Commission’s conciliation efforts are rarely transparent because the Commission does not routinely reveal to the employer the facts and reasoning which led the Commission to find that probable cause existed to believe the employer had violated a statute the Commission enforced. The Commission reports that as a result of this limited transparency of position, it has historically voluntarily resolved fewer than half of the charges as to which the EEOC believed the evidence supported a finding of unlawful discrimination. (Compare that with a 99+% voluntary conciliation rate at OFCCP).
- The three Republican Commissioners voted to approve the Final Rule, while both Democrat Commissioners dissented. The dissenters believed the new Rule would undermine the EEOC’s enforcement efforts by providing too much information to employers about the Commission’s case against it.
Opinion Letter on ICHRA
A new, formal Opinion Letter asking whether offering an Individual Coverage Health Reimbursement Arrangement (ICHRA, as a defined contribution, gives rise to liability under the Age Discrimination in Employment Act of 1967 (ADEA)). Note: ICHRAs are a benefit which an employer provides by contributing money into an account for the employee, which the employee then uses to purchase health insurance on his/her own.
The Opinion Letter concludes that ICHRAs, in which employers deposit the same dollar amount regardless of an employee’s age, do not violate the ADEA because all employees receive the same amount from the employer, and the employer is not involved in the employee’s decision about which health insurance to purchase. In addition, the Letter explains that employers that choose to increase the amount deposited into an older employee’s ICHRA account to offset age-based increases to his/her health plan costs will not thereby violate the ADEA.
- The vote was 3-2 in favor of the Commission issuing a formal Opinion Letter.
Wait…did you say an Opinion Letter from the EEOC?
Yes, these are new this year! Get up to speed by reading our story on Tuesday, December 8, 2020: EEOC To Begin Formal Opinion Letters.