The Equal Employment Opportunity Commission (EEOC) approved a final rule to update its conciliation program and encourage employers to voluntarily resolve employment discrimination charges.
“The mission of the EEOC is to prevent and remedy discrimination,” said Janet Dhillon, the agency’s chair, during a public meeting on Jan. 7. “Successful and effective conciliation will accomplish that goal.”
The commission voted 3-2 in favor of the final rule, which marks the first significant changes to the agency’s conciliation procedures since they were established more than 40 years ago.
More Transparency and Efficiency
Under the new rule, the EEOC will provide employers with “a written summary of the known facts,” among other information, when an employee files a discrimination charge. The goal is to better inform employers on the findings in the case and encourage them to resolve disputes voluntarily rather than in court.
EEOC Vice Chair Keith Sonderling noted that each year, the agency can only litigate a small number of cases that fail conciliation. “Thanks to the final rule, more victims of discrimination will obtain relief faster,” he said. The rule will also benefit employers, he noted, by providing the information they need “to decide whether it is in their best interest to settle the matter or litigate.”
“SHRM (the Society for Human Resource Management) believes conciliation is a valuable tool for employers and employees to efficiently resolve workplace disputes that result in the filing of an EEOC charge. The EEOC’s final conciliation rule provides for more transparency, consistency and efficacy in the process, which will consequently provide all parties a greater opportunity to resolve workplace issues earlier on, and remedy potential discrimination, retaliation and/or harassment in the workplace to foster more inclusive, thriving workplaces,” said Emily M. Dickens, SHRM chief of staff, head of government affairs and corporate secretary. “This updated conciliation process will benefit work, workers and the workplace.”
Benefits of Conciliation
The EEOC can sue an employer on behalf of a worker for discrimination under Title VII of the Civil Rights Act of 1964 and certain other federal laws, but the agency must try to resolve the issue through “informal methods of conference, conciliation and persuasion,” according to federal regulations.
During the conciliation process, an EEOC investigator will work with the employee (or job applicant) and the employer to determine an appropriate remedy. The agency lists the following advantages of participating in the conciliation process:
- Conciliation is a voluntary process.
- Conciliation discussions are negotiations, and the parties may present counteroffers.
- Conciliation offers the parties a final opportunity to resolve the charge informally after an investigation has been conducted but before the EEOC decides whether to file a lawsuit on behalf of the employee.
- Conciliation agreements can eliminate the uncertainty, cost and animosity associated with litigation.
In a 2015 decision, Mach Mining, LLC v. EEOC, the U.S. Supreme Court provided clarity about the conciliation steps the EEOC is required to take. The EEOC must inform the employer about the specific discrimination allegations in a notice that describes what the employer has allegedly done to violate the law and which employees have been affected. “And the EEOC must try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly discriminatory practice,” wrote Justice Elena Kagan.
Improving the Success Rate
The EEOC has improved its success rate for resolving charges through voluntary procedures, but it is still only successful about half the time.
Dhillon noted that employers decline to participate in conciliation in about one-third of the cases where reasonable cause for a discrimination charge is found. The updates are meant to raise the number of successful conciliations by creating greater accountability and transparency in the process.
Under the final rule, the EEOC must provide employers with the following information:
- A summary of the facts and nonprivileged information that the agency relied on in finding reasonable cause for a worker’s claim.
- A summary of the EEOC’s legal basis for finding reasonable cause. The final rule clarifies that this response should be in writing.
- An explanation about the calculations and methods used to determine the relief the EEOC is seeking. The final rule specifies that the explanation must be in writing only for the initial proposal.
- Whether the matter has been designated as a systemic, class, or “pattern or practice” claim.
The EEOC will allow employers at least 14 calendar days to respond to the agency’s initial conciliation proposal.
The commission approved the final rule along party lines on Jan. 7. The three Republican members—Dhillon, Sonderling and Andrea Lucas—voted in favor of the rule. The two Democrat members—Charlotte Burrows and Jocelyn Samuels—voted against it.
Burrows expressed her “strong opposition” to the rule and said that “central flaws remain” that “will lead to expensive and needless litigation.” Samuels noted that the final rule addresses some of her issues with the initial proposal, but said she is concerned that the rule “is a solution in search of a problem.”
In support of the rule, Dhillon said the changes will result in improved efficiency and participation in the EEOC’s conciliation process. “The primary objective is to make conciliation a more powerful tool to halt and remedy discrimination in a greater percentage of charges,” she said. “By providing information to the employer, the respondent will be able to more effectively access its potential liability, weigh the risks of discrimination and potentially take action to end the discriminatory practice at issue.”
During the public meeting, the EEOC also approved a final rule amending the agency’s official time regulation for the federal sector and issued an opinion letter on individual coverage health reimbursement arrangements.