On October 9, 2020, the Equal Employment Opportunity Commission (EEOC or Commission) published in the Federal Register a proposed rule describing amendments it intends to make to the regulations governing the statutory conciliation process. As stated in the proposed rule, the EEOC “… believes that providing greater clarity to the conciliation process will enhance the effectiveness of the process and ensure that the [EEOC] meets its statutory obligations.” Citing Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015), the EEOC acknowledged that to meet its statutory obligation to engage in meaningful conciliation, it must, at a minimum, “tell the employer about the claim—essentially, what practice has harmed which person or class—and must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance.”Id.

Citing its internal statistics, the EEOC acknowledged that “between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations were successful.” In addition, the EEOC estimated that “one third of respondents (employers) who receive a reasonable cause finding decline to participate in conciliation,” based on the “broadly held view that the process does not meet its full potential in providing value to all parties.” As a result, the EEOC determined that a “change in approach is necessary.”

The proposed change in its procedural conciliation regulations governing Title VII, ADA, ADEA and GINA is as follows:

The Commission will provide to the [employer], if it has not already done so: (1) a summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that 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; (2) 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 non-privileged information it obtained during the course of its investigation that raised doubt that employment discrimination had occurred; (3) the basis for any relief sought, including the calculations underlying the initial conciliation proposal; and (4) identification of a systemic, class, or pattern or practice designation. The Commission also proposes to specify that the [employer] participating in conciliation will have at least 14 calendar days to respond to the initial conciliation proposal from the Commission.

The EEOC believes that making these changes, “… in cases under Title VII, ADA, GINA, and the ADEA, will support the EEOC’s statutory obligations in the conciliation process, provide a better opportunity to resolve the matter, and remedy unlawful discrimination without litigation.” If the changes have the effect contemplated, participating parties may find the conciliation process effective at resolving disputes.

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