The EEOC’s Proposed Changes To The Conciliation Process

If a victim of workplace discrimination decides to sue his or her employer, they usually can’t go straight to court. Instead, they will have to go through the U.S. Equal Employment Opportunity Commission’s (EEOC) administrative process to try and resolve the dispute with the employer.

The purpose of this requirement is to allow the parties to settle their employment disagreement without having to go to court.

One step of this administrative process involves something called conciliation. Recently, the EEOC proposed a new rule that would modify how conciliation takes place.

The EEOC

The EEOC is a federal agency that’s primarily responsible for enforcing federal anti-discrimination laws within the employment context. Some of these laws include:

·      Title VII of the Civil Rights Act of 1964

·      Pregnancy Discrimination Act of 1978

·      Age Discrimination in Employment Act of 1967

·      Equal Pay Act of 1963

·      Title I of the Americans with Disabilities Act of 1990

·      Genetic Information Nondiscrimination Act of 2008

If a private-sector employee believes they are the victim of discrimination and would like to seek legal relief, they typically need to first file a charge with the EEOC. A “charge” is a summary of the employee’s complaint and is the first step in the EEOC administrative process.

One exception to this requirement is when an employee claims the employer violated the Equal Pay Act. In that case, the employee chooses between filing a charge with the EEOC or going straight to court.

The EEOC Administrative Process

After filing the charge, the employer is given notice and will have the opportunity to review the allegations made against it. After the EEOC reviews the charge, one of two things could occur.

First, the EEOC will decide that the charge lacks sufficient merit for it to take additional action. This doesn’t mean the employee is out of luck; rather, the EEOC will provide a Dismissal and Notice of Rights letter which gives the employee the option of continuing to pursue his or her case, but by filing a civil complaint in federal court.

Second, the EEOC will determine that there’s some merit to the charge and that the EEOC will investigate the matter further. In some cases, before an investigation occurs, the EEOC will ask each side to see if they’re willing to resolve their dispute through the voluntary mediation program.

If the EEOC does not offer mediation, or if the parties reject the mediation program, the EEOC will begin its investigation into the employee’s allegations. At this time, the EEOC will ask one or both sides to provide additional information, such as providing copies of relevant documents.

After the investigation is finished, the EEOC will conclude that there is, or there is not, reasonable cause to believe unlawful discrimination has occurred.

If the EEOC decides that there is no reasonable cause to believe unlawful discrimination has occurred, it will provide the employee with the Dismissal and Notice of Rights letter. The employee can either stop the pursuit of legal relief or continue the process by suing the employer in federal court.

If the EEOC concludes that there is reasonable cause to believe the employer engaged in unlawful discrimination, then the EEOC will give both parties a Letter of Determination. This lets each side know the EEOC’s position and that it will attempt to resolve the dispute through an informal process called conciliation.

Conciliation is a voluntary process where the EEOC attempts to convince each side to agree to settle their dispute. No side can be forced to accept the terms of conciliation.           

If conciliation does not work, the EEOC may sue the employer on the employee’s behalf. The EEOC may not bring suit against an employer until the EEOC has first attempted conciliation.

Alternatively, a failed conciliation could result in the EEOC providing a Notice of Right to Sue letter to the employee. This letter gives the employee the right to continue his or her legal action by filing suit against the employer in federal court.

The Proposed Changes to Conciliation

The biggest change proposed by this new rule is forcing the EEOC to provide additional information to the employer during conciliation. Some of the major disclosure requirements imposed on the EEOC include:

• The known facts and other non-privileged information that the EEOC relied on when finding there was reasonable cause.
• An explanation of the EEOC’s legal basis for concluding there was reasonable cause.
• Underlying calculations and explanations in support of the monetary relief sought.
• The EEOC’s designation of the case, such as a systemic, class or pattern or practice.

None of these disclosures shall include privileged information, or information otherwise protected by another federal law. The proposed rule also requires that the EEOC give the employer at least 14 days to respond to the EEOC’s initial conciliation proposal.

What the EEOC’s Proposed Rule Change Means for Conciliation

These proposed changes seem fair and reasonably likely to improve the conciliation process. But these changes may provide an increased advantage to the employers at the expense of the employees.

Currently, the EEOC has broad discretion in how it approaches conciliation. The EEOC is simply required to use “informal methods of conference, conciliation and persuasion” when trying to get both sides to settle. The EEOC has tremendous flexibility when deciding whether to sue an employer or accept an employer’s offer to settle.

But these new rules would impose additional requirements on the EEOC that would limit some of this flexibility. For instance, it would require the EEOC to reveal facts and legal arguments to the employer that it wouldn’t have otherwise needed to. Keep in mind that much of the investigation that the EEOC completes is in anticipation of a possible lawsuit against an employer.

Another disadvantage to the EEOC or employee is that the disclosure requirements do not explicitly protect the anonymity of witnesses or individuals cooperating in the employee’s case against the employer.

While “aggrieved individuals” may request anonymity, there is nothing in the proposed rule that says witnesses may ask for anonymity. Therefore, when providing information to the employer during the conciliation process, the EEOC may be forced to reveal the identities of cooperating witnesses. In the long-run, this could dissuade individuals from coming forward to cooperate with the EEOC for fear of retaliation.

What Happens Next?

This proposed rule will likely go into effect, although it’s unclear exactly when this might occur. Based on how proposed new rules typically work, it shouldn’t go into effect until at least 2021, after president-elect Joe Biden is sworn in as President of the United States.

Before it can go into effect, the EEOC must review the public comments it has received (deadline for submission was November 9, 2020), develop the wording of the final rule, likely wait for a 90-day review period by the Office of Management and Budget, then get the rule published in the Federal Register. Once published, there is typically a 30-day delay until the rule goes into effect.

However, there are ways to expedite this process and the EEOC may try and use one or more of these methods.