new rule

New Rule on EEOC Conciliation Process

On or around February 12, 2021, the EEOC withdrew these proposed new rules on wellness programs. The EEOC has stated such rules are still under consideration, so stay tuned for further developments.

On January 2021, the United States Equal Employment Opportunity Commission (“EEOC”) published a new final rule governing the process and procedures used by the agency to attempt to resolve cases in which it finds, after investigation, some form of discrimination. This process of attempting to resolve cases is known as the “conciliation” process.

According to the EEOC, “the final rule brings greater transparency and consistency to the conciliation process and helps ensure that the [EEOC] meets its statutory obligations regarding conciliation.” Title VII requires the EEOC to “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

The United States Supreme Court recently addressed the nature and scope of the EEOC’s obligations in this regard in a case titled Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015). In that case, the EEOC investigated, found probable cause of discrimination, and sent a letter to the employer regarding the same. In the letter, the EEOC invited the employer to conciliate and noted a representative would be in contact to start that process. After a year passed, EEOC sent another letter stating conciliation was unsuccessful and then filed a lawsuit against the employer.

The employer challenged the lawsuit on the basis of its allegation that the EEOC failed to conciliate in good faith as required by statute. The EEOC argued its conciliation process was not subject to judicial review by Courts. Ultimately, the dispute reached the Supreme Court, which held courts do have the authority to review the EEOC’s conciliation process and whether the EEOC fulfilled its duty to conciliate.

However, the Supreme Court emphasized the scope of this review was narrow and pertained only to “enforcing the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance.” In this regard, the Supreme Court concluded:

  • The EEOC must inform the employer about the specific discrimination allegation;
  • Its notice must describe what the employer has done and which employees (or class of employees) have suffered; and
  • The EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice.

The new final rule—effective as of February 16, 2021—elaborates on the specifics of these duties. Under this new rule, once an employer agrees to conciliate, the EEOC must provide the employer “with a written summary of the known facts and non-privileged information that the Commission relied on its reasonable cause finding [of discrimination].” This summary must include the following:

  • Identifying known aggrieved individuals or groups of individuals for whom relief is sought (unless anonymity was requested);
  • Stating the criteria used to identify aggrieved individuals, if a claim process is contemplated for a class of aggrieved individuals;
  • Providing an explanation as to how the law was applied to the facts; and
  • Providing the basis for the monetary relief requested from the initial EEOC conciliation proposal and its calculations.

The new rule clarifies the EEOC must allow the employer at least fourteen (14) calendar days to respond, and the information in the summary is available to any allegedly aggrieved individual upon request.

In its Press Release, the EEOC noted, “[d]espite EEOC’s efforts to promote voluntary resolutions, the agency’s conciliation efforts resolve less than half of the charges where the evidence supports a finding of discrimination.” Nonetheless, the EEOC expects that the new rule will “increase the effectiveness of its efforts to achieve cooperation and voluntary compliance.”

Time will tell whether these new procedures will make the conciliation process more effective in terms of resolving disputes without the need for litigation, or whether they will simply breed more grounds for potential litigation between employers and the EEOC about whether the EEOC is fulfilling its statutory duty to conciliate in any given case. Stay tuned for further developments.

Update: As part of the Biden administration’s regulatory freeze, these NPRM’s have been withdrawn.