Friday, October 9, 2020: Comment Now on EEOC Conciliation Process
The Equal Employment Opportunity Commission (EEOC) seeks comments on its Proposed Rule to update the Agency’s conciliation practices. The Proposed Rule would require that in any conciliation, the Agency will provide respondents with:
- a summary of the facts and nonprivileged information that the Commission relied on in its reasonable cause finding, and if the Commission also seeks a claims process that it must identify aggrieved individuals, and the criteria the Commission is proposing to use to identify victims from the pool of potential class members;
- 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 nonprivileged information it obtained during its investigation that led the Commission to conclude that employment discrimination had occurred;
- the basis for any relief sought, including the calculations underlying the initial conciliation proposal; and
- identification of a systemic, class, or pattern or practice designation.
The respondent (i.e. company/institution/union) participating in conciliation will have at least 14 calendar days to respond to the initial conciliation proposal from the Commission.
The EEOC is seeking public comment on the proposed Rule in general, but specifically asks for input regarding whether the Commission should specify that its disclosures must only be done in writing or if it should allow for oral disclosures. Comments must be received by November 8, 2020, and may be submitted online at www.regulations.gov.
NOTE: This issue of conciliation “transparency” arises because Title VII, like EO 11246, contains a duty to “conciliate.” In Title VII, that section (42 USC Section 2000e-5(b)) requires that before the EEOC may commence litigation against an employer (if the Commission determines that there is “reasonable cause” to believe that the charge (of alleged unlawful discrimination) is true), it must “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion” in an attempt to reach a conciliation agreement acceptable to the Commission.
On April 29, 2015, the U.S. Supreme Court unanimously rejected the view of employers that Title VII’s conciliation requirement required good faith disclosures of the grounds for liability and damages so the company could meaningfully assess and address the Commission’s claims. Instead, the Court in Mach Mining, LLC v. Equal Employment Opportunity Commission, 135 S. Ct. 1645 (2015) (April 29, 2015) held that Title VII’s duty of conciliation was extremely modest and only required the EEOC to put the employer on notice that a dispute existed between the parties with no further detail and the EEOC’s only duty was to:
“…inform the employer about the specific allegation, as the Commission typically does in a letter announcing its determination of ‘reasonable cause.’ Such notice properly describes both what the employer has done and which employees (or what class of employees) have suffered as a result. And the EEOC must try to engage the employer in some form of discussion . . . so as to give the employer an opportunity to remedy the allegedly discriminatory practice. Judicial review of those requirements (and nothing else) ensures that the Commission complies with the statute. At the same time, that relatively barebones review allows the EEOC to exercise all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them.”
Since the Mach Mining decision, EEOC and OFCCP investigators have taken guidance from the agencies’ lawyers NOT to be transparent or forthcoming in conciliation discussions, since Title VII (and OFCCP’s counterpart language) do not so require. That advice and behavior in attempted settlement discussions has led to corporate frustration nationwide and more, rather than fewer, lawsuits as employers now need to invite an agency Complaint in the courts to obtain discovery rights to find out what the agency evidence is and what, exactly, it is claiming. The Trump EEOC and OFCCP political appointees have demanded their agencies be transparent beyond the minimum dictates of the authorizing statutes of the agencies and to be detailed with companies. However, agency conciliators have largely ignored those instructions at the conciliation bargaining tables. The EEOC is now addressing the issue formally, while OFCCP continues to proceed on the assumption that OFCCP investigators will faithfully follow the instructions of the OFCCP Director.