EEOC modifies procedures to encourage more successful conciliation process

David J. TecsonPrincipal, Chuhak & Tecson, P.C.

On Jan. 11, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) sent its Final Rule – Update of Commission’s Conciliation Procedures to the Federal Register. The rule will become effective 30 days from its publication and will not be applied retrospectively.

By this rule, the EEOC amends its process to require that the commission provides more information to respondents in support of its findings of discrimination and its monetary and injunctive demands. It seeks to “bring greater transparency and consistency to the conciliation process and to help ensure that the Commission meets its statutory obligations regarding conciliation.”  It explains: “It is axiomatic that a party cannot adequately evaluate a claim or related demand without understanding the factual and legal basis for it.”

The EEOC receives charges of unlawful employment practices under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act and the Age Discrimination in Employment Act. An EEOC investigator considers a charge and requests information from the charging party and the respondent employer to evaluate whether unlawful discrimination has likely occurred. If it finds reasonable cause for a charge of employment discrimination, the EEOC, by law, is required to try to informally conciliate the unlawful employment practices. A resolution can include a monetary payment, required changes to employment practices, public notice and ongoing reporting obligations. Conciliation is considered a critical part of the EEOC’s mission to eradicate discriminatory employment practices, if possible, without litigation.

The EEOC’s conciliation procedures were issued in 1977 and were never significantly revised until now. Concerned that a lack of information was hindering the conciliation process, the EEOC changed its procedures to require that more fulsome information is provided to the respondent and to the charging party (upon request). Indeed, the EEOC reports that currently less than one-half of the cases in which the EEOC has found reasonable cause that discrimination has occurred are resolved through conciliation, and approximately one-third of the respondents who receive a reasonable cause finding refuse to engage in conciliation.

The new rule imposes a heightened disclosure burden on the EEOC itself to make the conciliation process more meaningful and effective. Under the new rule, the EEOC will be required to disclose the essential facts and the law supporting each claim, its findings and demand. The EEOC presumes that a respondent, which has more information about why the EEOC made its decision and subsequent demand, will be better able to evaluate its potential liability and the settlement offer, and the process will ultimately result in more respondents being willing to participate in conciliation to their charges.

The EEOC seeks to satisfy its primary statutory objective of purging unlawful discrimination in employment. It believes the changes to its procedures will increase participation in the conciliation process and lead to more successful outcomes.

Chuhak & Tecson, P.C.’s Employment Practice consists of experienced attorneys well-versed in EEOC procedures and employment issues. For more information about employment discrimination, charges, the investigative process and conciliations, contact one of Chuhak & Tecson’s Employment attorneys.

Client Alert authored by Jeralyn H. Baran (312 855 4613), Principal and leader of Chuhak & Tecson’s Employment Practice.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.