In an effort to improve conciliation efforts and reduce lawsuits involving claims of discrimination in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) recently issued a Notice of Proposed Rule, and it is seeking input and comment from employers.
EEOC Clarifies its Role
Specifically, the EEOC has unveiled new procedural conciliation regulations that would require greater transparency by the EEOC by outlining the specific steps that the EEOC will take during the conciliation process.
The end goal of the proposed amendments is to enhance efficiency and better encourage a negotiated resolution, when possible, in lieu of litigation.
Typically, when an employee files a Charge of Discrimination (Charge), the EEOC launches an investigation. At the end of its investigation, the EEOC makes a determination on the merits of the Charge. If the EEOC concludes that the information obtained in the investigation does not establish a violation of the law, the employee receives a “Dismissal and Notice of Rights.” This informs the employee that he or she has the right to file a lawsuit against the employer within 90 days.
Some Employers are Leary of Participating in Conciliation
If you are an employer and have never been asked to participate in conciliation, consider yourself fortunate.
Conciliation only occurs if the EEOC determines there is reasonable cause to believe discrimination has occurred. This “Letter of Determination” invites the employer and the affected employees to join the EEOC in seeking to settle the Charge through an informal and confidential process, i.e., “conciliation.”
Currently, the EEOC’s conciliation efforts resolve less than half of the Charges where a reasonable cause finding has been made.
Between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations were successful.
Furthermore, the EEOC estimates that one third of employers who receive a reasonable cause finding decline to participate in conciliation.
Proposed Changes to Conciliation
Conciliation is voluntary, and an employer is not required to participate. In an effort to improve the likelihood of both employer participation and amicable resolution, the proposed changes would require the EEOC to, among other things:
- Provide the employer with a written summary of the facts the EEOC relied upon in its reasonable cause finding, including identifying the employees or known groups of employees for whom relief is being sought;
- Identify what criteria will be used by the EEOC to identify additional victims from the pool of potential employee class members;
- Provide the employer with a summary of the EEOC’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts. If there is material information that the EEOC obtained during its investigation that caused the EEOC to doubt that there was reasonable cause to believe discrimination occurred, then the EEOC will need to explain how it was able to determine there was reasonable cause despite this information.
- Provide the employer with the basis for monetary or other relief, including the calculations underlying the initial conciliation proposal;
- Advise the employer whether the EEOC has designated the case as systemic, class, or pattern or practice, as well as the basis for the designation; and
- Provide the employer at least 14 calendar days to respond to the EEOC’s initial conciliation proposal.
In addition, under the proposed amendments, the EEOC may (but is not required to) provide a response to the defenses raised by the employer.
Employers have been invited to comment on these proposed amendments by no later than November 9, 2020.
We will continue to monitor this and provide additional updates as warranted.