EEOC Proposing To Share More Details With Employers During The Conciliation Process

Randi Klein Hyatt
Randi Klein Hyatt
10/09/2020

The Equal Employment Opportunity Commission (EEOC) has issued a newly proposed Rule that would alter the conciliation process, which the EEOC uses as a method of alternative dispute resolution with employers that have had a finding of “reasonable cause” issued against them at the conclusion of the EEOC’s investigation.  Conciliation is technically a voluntary alternative to litigation after the agency has determined, based upon its investigation, workplace discrimination has occurred.  If a conciliation agreement is not reached, the EEOC can consider bringing suit against the employer.

Under this new proposal, the agency would provide employers with “a summary of facts and non-privileged information” used to determine and support the reasonable cause finding, specifics about the details underlying the charging party’s allegation of workplace discrimination, the methodology for the relief sought by the EEOC in conjunction with a proposed Conciliation Agreement, and finally, “identification of a systemic, class, or pattern or practice designation.”  The proposed Rule was released Thursday, October 8, and the public will have 30 days to comment once published in the Federal Register.

The EEOC offered in support of this change that this new sharing of information will encourage greater participation in the conciliation process by employers.  The EEOC shared that in cases where the agency determines reasonable cause, only about one-third of employers choose to participate in conciliation and believes this widespread rejection of conciliation is a call to change the process to provide more value to all parties.

In my more than 25 years of practicing, I’ve had less than a handful of cases go through the conciliation process with the EEOC.  Two resolved and two did not (and neither of those two resulted in any EEOC-driven litigation).  In my experience, it usually comes down to whether the Charging Party has an experienced attorney representing him or her through the process.  If it is an EEOC Investigator handling the conciliation, the focus and interests of resolution are more blurred and supporting information is not readily disclosed.  Either way, it would be ideal if these changes did occur to result in a more candid flow of information that can inform a reasonable settlement decision.

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