EEOC Proposes New Rule Providing More Information to Employers During the Conciliation Process

On October 8, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposal to amend its procedural rules governing the conciliation process. The conciliation process allows employers and charging parties to attempt to confidentially settle a charge of discrimination to avoid potentially costly litigation. In fact, the EEOC was able to secure a 41.23% success rate for conciliations between fiscal years 2016 to 2019. However, because less than half of conciliations are successful, the EEOC believes “a change in approach is necessary” to “carry out its statutory conciliation responsibility” to end employment discrimination.

Through this rulemaking, the EEOC proposes that employers will have more information about the nature of employment discrimination allegations. Specifically, the EEOC will provide to the employer:

  • A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and if it is anticipated that a claims process will be used subsequently to identify aggrieved individuals, the criteria that will be used to identify victims from the pool of potential class members;
  • A summary of the Commission’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts, as well as non-privileged information it obtained during its investigation that raised doubt that employment discrimination had occurred;
  • The basis for any relief sought, including the calculations underlying the initial conciliation proposal; and
  • Identification of a systemic, class, or pattern or practice designation.

The rule also proposes that employers will have at least 14 calendar days to respond to the EEOC’s initial conciliation proposal from the EEOC. This proposed rule was published in the Federal Register on October 9, 2020, and the public will have 30 days to comment.

You may submit comments, identified by RIN Number 3046-AB19, by any of the following methods:

  • Federal eRulemaking Portal: Follow the instructions for submitting comments.
  • Fax: (202) 663-4114. (There is no toll free fax number). Only comments of six or fewer pages will be accepted via fax transmittal, in order to assure access to the equipment. Receipt of FAX transmittals will not be acknowledged, except that the sender may request confirmation of receipt by calling the Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 (TTY). (These are not toll free numbers).
  • Mail: Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.
  • Hand Delivery/Courier: Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.