By: Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  As reported here, on May 29, 2020, EEOC Chair Janet Dhillon advised agency officials of a new, six-month pilot program changing the Commission’s practices in settling workplace bias claims before pursuing litigation. The program is designed to “provide greater structure and transparency” in pre-suit conciliation processes and is “aimed at ensuring that unlawful employment practices are resolved more quickly.” This new program is the latest in the EEOC’s ongoing efforts to engage in more robust conciliation efforts prior to filing litigation on behalf of employees.

Pilot Program Procedures

While the full details of the six-month pilot program have not yet been released by the EEOC, the new procedures appear focused on enhancing oversight over the litigation selection decisions made by EEOC personnel in the field and will change how the agency conciliates discrimination and harassment allegations in an effort to “provide greater structure and transparency.” In effect, this process would lessen the discretion of filed personnel to initiate lawsuits and reject settlement offers in workplace enforcement litigation.

The new program is reportedly “aimed at ensuring that unlawful employment practices are resolved more quickly, thus conserving the agency’s and the parties’ resources, improving workplace policies and preventing discrimination from occurring.” There is also a requirement that conciliation offers be approved by a higher level of management before they are sent to employers. No more detail on these changes has yet been released.

Implications For Employers

While the full details of the program have yet to be disclosed, the changes described by the EEOC thus far appear to be positive developments for employers. The program requirements suggesting that personnel in the field must get approval from a higher level of management before making conciliation demands – or rejection of settlement proposals – will provide more clarity and assurance that a conciliation demand offered to an employer has the approval of the EEOC from the district level and will prevent last-minute changes during the negotiation process.

These new measures are the latest in a number of changes at the EEOC made by Commission Chair Dhillon (details on a recent requirement that certain cases must be approved by a Commissioner vote can be found here) and is consistent with the EEOC’s strategic priorities to emphasize pre-suit conciliation. This new program is a must-watch for employers, as it could substantially impact the conciliation process with the Commission for at least the next six months.