Thursday, January 14, 2021: EEOC Final Rule on Its Conciliation Process Moves in the Direction of Employers, but is Ultimately Disappointing
As we reported last week, the EEOC has now published its Final Rule on its Conciliation Process. The comment period closed on November 9, 2020. The 13-page document addressed the comments the agency received and the final (minimal) changes the Commission made to its Proposed Rule.
In the end, it was significant that the Commission moved the Commission staff and lawyers half way down the path by requiring the EEOC to make detailed written (but only) initial disclosures of position. However, it is disappointing to employers that the Commission now continues to allow subsequent rounds of negotiation to only permissively be in writing (they may be only oral in the Commission’s discretion) and to only permissively allow a Commission response to the employer and only permissively to contain the details of the Commission’s new understanding of the relevant facts and pertinent law.
It continues to be troubling to employers that Commission staff does not intuitively and immediately appreciate the need to be detailed and transparent at each turn of the bargaining if the parties wish to understand and eliminate differences in position and come to a reasoned and defendable conclusion. “Pig-in-the-poke” bargaining is rarely satisfying or acceptable to General Counsels, Senior HR Managers and CEOs and only breeds corporate scorn and contempt for the Commission as engaging haphazardly through the process.
The Commission’s Rule continues the Commission and employers on their existing course to fail to successfully conciliate in a large percentage of contested EEOC Charge investigations, especially systemic or other complex investigations.
Here is a taste of the Commission’s attitude underscoring streamlined, quick, simple and aloof negotiations in a hard put-down of employer pleas of EEOC detailed engagement and transparency:
“As the Supreme Court made clear in Mach Mining, Congress afforded the Commission wide latitude to pursue voluntary compliance with a statutory provision, “every aspect” of which “smacks of flexibility.” Mach Mining, 575 U.S. at 492; 42 U.S.C. 2000e-5(b). And like the Supreme Court in that case, the Commission declines to infuse the conciliation process with a rigid code of rules that handcuffs the agency by limiting the broad strategic leeway Title VII affords to it to execute its mission. See Mach Mining, 575 U.S. at 492 (rejecting the petitioner’s “proposed code of conduct” and “bargaining checklist” because “Congress left to the EEOC such strategic questions about whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield.”). The Commission meets its statutory obligation by providing the basic factual and legal information for the respondent to evaluate the claim and identify the discriminatory action or practice. But once this is accomplished, the Commission retains “discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief.” Id. The Commission declines to adopt such proposals because they damage the flexibility critical to its ability to conciliate claims without any concomitant benefit.”
This passage misses the point that the discussion is less about what the Commission “may do” within the boundaries of its mandate from Title VII, but rather it is about what the best course of action is for the Commission and employers to help them amicably resolve disputed Charges from among the choices available to the Commission and given the discretion Title VII makes available to it.
EEOC Rules of Engagement of Note
The EEOC’s initial disclosure of its claim will be in writing, but subsequent offers and counter offers may be oral and need not have any accompanying explanation or detail. That remains true even if the employer’s response to the Commission’s initial claim(s) sets the Commission off on an entirely new course of factual claims and law allegedly supporting that new Commission claim of liability and/or damages. Here are the guts of the seminally important disclosure matter:
1601.24 Conciliation: Procedure and authority.
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“(d) In any conciliation process pursuant to this section, after the respondent has agreed to engage in conciliation, the Commission will:
- …provide the respondent with a written summary of the known facts and non-privileged information that the Commission relied on in its reasonable cause finding, including identifying known aggrieved individuals or known groups of aggrieved individuals for whom relief is being sought, unless the individual(s) has requested anonymity.
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- …provide the respondent with a written summary of the Commission’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts. In addition, the Commission may, but is not required to, provide a response to the defenses raised by respondent;
- Provide the respondent with the basis for monetary or other relief, including the calculations underlying the initial conciliation proposal and an explanation thereof in writing. A written explanation is not required for subsequent offers and counteroffers;
- …if there is a (Commission) designation at the time of the conciliation, advise the respondent in writing that the Commission has designated the case as systemic, class, or pattern or practice as well as the basis for the designation;”
The Rule will become effective on February 16, 2021. It will apply to charges as to which the EEOC has sent a Letter of Determination inviting the employer to engage in conciliation.