The U.S. Equal Employment Opportunity Commission has issued a proposed rule addressing conciliation based on the various laws it enforces, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act. The proposed rule, published on October 9, 2020 in the Federal Register, follows an extensive discussion that occurred at an agency meeting held on August 18, 2020, in which the Commission explained: “The EEOC is proposing to amend its procedural rules governing conciliation in order to enhance its effectiveness and to create accountability and transparency in the conciliation process.”

Background on Conciliation

Conciliation between the EEOC and an employer is a pre-condition to filing suit against an employer after the Commission issues a reasonable cause finding to a discrimination charge. Under Section 706 of Title VII, as amended, the statute expressly states, “the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Regulations governing conciliation have been in place since 1977, and the same rules were applied as other EEO laws came within the Commission’s jurisdiction.  The U.S. Supreme Court never squarely addressed the substance of the conciliation requirement, however, until its decision in Mach Mining LLC v. EEOC, 575 U.S. 480 (2015).

In Mach Mining, the Supreme Court underscored the importance of the conciliation process and held that it was subject to judicial review, but that the scope of the review would be limited. In its decision, the Court focused on the express language of the statute and declined to impose a “good faith” requirement on the EEOC in the conciliation process. Notwithstanding, the Court explained that the statute’s provisions referring to “conference, conciliation and persuasion…necessarily involve communication between the parties, including the exchange of information and views.” The Court also underscored that the Commission 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.”  Other language in the decision, however, focused on a court’s mere “barebones review” of the parties’ conciliation efforts. The Court explained that the EEOC is entitled to exercise:

all the expansive discretion Title VII gives it to decide how to conduct conciliation efforts and when to end them. And such review can occur consistent with the statute’s non-disclosure provision, because a court looks only to whether the EEOC attempted to confer about a charge, and not to what happened (i.e., statements made or positions taken) during those discussions.

Over the years, the conciliation process has often been criticized, particularly from the management side of the bar.  Conciliation practices have been seen as inconsistent at best across EEOC field offices and depending on the nature of the charge at issue.  Others have expressed that the agency has not always been forthcoming or reasonable in its approach to conciliation (for example, failing to disclose how it arrives at its demand for monetary relief, or the scope of the class of employees for whom it is seeking relief).  Indeed, according to the EEOC’s own data, conciliation efforts currently resolve less than half of the charges where a reasonable cause finding has been made, and one-third of respondent employers decline to participate in the conciliation process. 

The proposed rule stems, in part, from some of the criticism leveled at the agency. In the August 18 meeting discussing the proposed roles, EEOC Chair Janet Dhillon explained:

Since Mach Mining, the Commission has issued internal guidance describing what needs to be done in order to comply with that decision and has done training. Despite this direction and training, however, the Commission hears instances in which conciliation has failed as a result of mistrust between the parties. In fact, between fiscal years 2016 and 2019, only 41.23% of the EEOCs conciliation were successful and when third of the time a conciliation was offered, it was declined. That the purpose of formalizing through regulation, what has up until this point been aspirational, is to create greater accountability and transparency in the conciliation process and to bridge the communication gap that I believe has interfered with the success of our conciliation program.

Chair Dhillon also has repeatedly stated that litigation should be a matter of “last resort,” and this has reinforced her commitment to the conciliation process.  Commissioner Lipnic echoed these views. While she was serving as acting chair, Commissioner Lipnic began a review of conciliation efforts in the field.

The proposed rule is “on the heels” of the EEOC’s six-month pilot program on conciliation, which the Commission announced on July 6, 2020, explaining:

The EEOC’s conciliation pilot, which began on May 29, 2020, makes a single change to the process to drive accountability and is also part of our broader effort to emphasize the importance of conciliation as a tool for remedying complaints of discrimination.

The six-month pilot program recommits EEOC to resolving charges through conciliation as these resolutions are one of the most effective means for bringing employers into compliance with the statutes the agency enforces.  The pilot builds on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years, and adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents.  In short, the pilot seeks to drive greater internal accountability and improve the EEOC’s implementation of existing practices.  

At the August 18 Commission meeting, Commissioner Lipnic underscored that any final rule should take into account the results of the conciliation pilot, as reviewed by the EEOC’s Office of Enterprise Data and Analytics, as well as what she hopes will be “robust comments from the public on this NPRM.”

Summary of Proposed Rule

The EEOC’s proposed rule would require that in any conciliation, the Commission would provide an employer, if it had not already done so:

• 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;

• 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;

• The basis for any relief sought, including the calculations underlying the initial conciliation proposal; and

• Identification of a systemic, class, or pattern or practice designation.

The proposed rule would also specify that the respondent participating in conciliation would have at least 14 calendar days to respond to the initial conciliation proposal from the Commission.  The EEOC is also seeking input on whether it should specify that its disclosures be made in writing or if oral disclosure should be allowed.

The proposed rule, if finalized, would provide more consistency and clarity to all parties in the conciliation process. 

The proposal provides for a 30-day period for public input and comment.  At the conclusion of that period, the EEOC will analyze the comments it has received, and may modify its initial proposal based on that input, before publishing a final rule.