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

Seyfarth Synopsis:  On August 18, 2020, the EEOC held a public meeting to address a notice of proposed rulemaking containing potential substantive amendments to the Commission’s conciliation process. Though a copy of the notice has not yet been publicly released, the EEOC has stated that the proposed changes to the conciliation process aim to “enhance its effectiveness and to create accountability and transparency.” At the conclusion of the meeting, the Commission voted in favor of sending the notice to the Office of Management and Budget (“OMB”) for review.

The EEOC held its August 18 meeting remotely and, per the requirements of the Sunshine Act, was open for the public to call in and listen to the proceedings. EEOC Chair Janet Dhillon, Commissioner Victoria Lipnic, and Commissioner Charlotte Burrows were all present to discuss the content of the notice of proposed rulemaking (“NPRM”) and any proposed amendments to the notice. EEOC legal counsel Andrew Maunz was also present and outlined the mechanics of the NPRM.

While the presentation on the specifics of the NPRM suffered some audio difficulties and the full details of the NPRM have not yet been released, the disclosed elements of the changes indicate that significant modifications to the conciliation process are in the works. With a primary goal of increased transparency, the discussion suggested that the proposed rules could require the EEOC to disclose more substantial portions of its investigation file to respondents engaging in the conciliation process – including the identities of individuals who participated in the investigation, a summary of the known facts, and the factual and legal analyses that support a for-cause finding by the Commission. Additionally, the proposed requirements may give respondents 14 days to respond to a conciliation proposal.

The discussion at the Commission’s meeting suggested that the NPRM comes as a result of several years of commentary and litigation surrounding the conciliation process, as well as a finding that only 40% of cases with a for-cause determination by the Commission have successful conciliations. Earlier this year, the EEOC also implemented a pilot program with changes to the conciliation process, though the changes in the NPRM may be broader than those made by the program. Though Commissioner Burrows proposed several amendments to the NPRM, only a few were passed, and Chair Dhillon and Commissioner Lipnic voted to send the NPRM to the OMB at the conclusion of the meeting. Following the vote, Chair Dhillon remarked that “conciliation is vital to EEOC’s efforts to remedy discrimination, and I am confident that today’s vote will pave the way to increasing participation in the conciliation process and, in turn, to achieving relief for more victims of employment discrimination.”

Implications For Employers

Once the NPRM is released, the EEOC will be seeking input on whether these proposed amendments will result in additional challenges to the Commission’s conciliation efforts, and whether such challenges would delay or adversely impact litigation brought by the Commission. However, if these proposed changes are ultimately adopted, they would result in substantially more transparency in the conciliation process for employers and would create a more consistent process for employers negotiating conciliation terms with the Commission.

These changes are the latest in a series of high priority press releases issued by EEOC over the past few months. The ongoing changes at the Commission are a must-watch for employers as the EEOC begins wrapping up its fiscal year, which ends on September 30, 2020.