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

Seyfarth Synopsis:  As we first reported here, the EEOC announced in August 2020 that it was proposing significant amendments to its conciliation process via a notice of proposed rulemaking (“NPRM”), though specific details regarding the amendments were not released at that time. On October 8, 2020, the EEOC followed through and finally released the specifics of the NPRM and its proposed changes to the conciliation process.

The changes are a critical read for all employers and practitioners alike, as the amendments aim to improve transparency and the effectiveness of the EEOC’s previously opaque and undefined conciliation procedures.  

Proposed Amendments To The Conciliation Process

In its NPRM, the EEOC outlined a detailed history of the conciliation process and the Commission’s previous philosophy related to conciliating charges. The EEOC acknowledged in the NPRM that, historically, it elected to not adopt detailed regulations relative to its conciliation efforts based on its belief that retaining flexibility over the conciliation process would “more effectively accomplish its goal of preventing and remediating employment discrimination.” While the Commission’s NPRM makes clear that the Commission still believes that it is important to maintain a flexible approach to conciliation, it also acknowledged that, over the last several years, its conciliation efforts resolved less than half of the charges where a reasonable cause finding was made. Specifically, between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations with employers were successful.

In an effort to improve the effectiveness of the conciliation process, the NPRM seeks to amend the conciliation process for charges brought pursuant to Title VII, ADA, GINA, and the ADEA. The Commission opined that these amendments will support the EEOC’s statutory obligations in the conciliation process, provide a better opportunity to resolve charges with employers, and remedy unlawful discrimination without need for litigation. Ultimately, the EEOC stated in the NPRM that the proposed amendments establish “basic information disclosure requirements that will make it more likely that employers have a better understanding of the EEOC’s position in conciliation and, thus, make it more likely that the conciliation will be successful.”

Relative to the actual changes, the EEOC is seeking the following specific amendments to the conciliation process:

  • First, the EEOC will provide respondents with a written summary of the known facts and non-privileged information that the Commission relied on to reach a reasonable cause finding, including identifying known aggrieved individuals for whom relief the Commission is seeking relief, unless the individuals request anonymity. Additionally, if the EEOC anticipates that a claims process will be used subsequently to identify aggrieved individuals, it will identify the criteria that will be used to ascertain aggrieved individuals from the pool of potential class members. In cases in which the information does not provide an accurate assessment of the size of the class (such as in harassment or reasonable accommodation cases), the EEOC may, but is not required to, provide more detail to respondent, such as the identities of alleged harassers or supervisors, or a description of the testimony or facts gathered from identified class members during the investigation. The Commission may also use its discretion to determine whether to disclose current class size to respondents and, if class size is expected to grow, an estimate of potential additional class members.
  • Second, the Commission will provide the respondent with a summary of the Commission’s legal basis for finding reasonable cause of discrimination, including an explanation as to how the law was applied to the facts. If there is material information that the Commission obtained during its investigation that caused the Commission to doubt that there was reasonable cause to believe discrimination occurred, it will explain how it was able to determine there was reasonable cause despite the information. In addition, the Commission may, but is not required to, provide a response to any defenses raised by the respondent.
  • Third, the EEOC will provide the respondent with the basis for monetary or other relief, including the calculations underlying the initial conciliation proposal, and an explanation of the same.
  • Fourth, the EEOC will advise the respondent whether it has designated the case as systemic, class, or pattern or practice as well as the reason for the designation.
  • Fifth, the Commission will provide the respondent at least 14 calendar days to respond to the Commission’s initial conciliation proposal.

Implications For Employers

Now that the NPRM has been 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. The EEOC is also asking for feedback relative to whether it should be required to make the proposed disclosures in writing or whether oral disclosures would suffice. 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 and, as we reported earlier this month, the EEOC had a whirlwind of activity as it wrapped up its 2020 fiscal year. Employers dealing with these issues should carefully read the newest guidance as well as details on the EEOC’s other recent changes, all of which have been tracked here.