In a previous post on July 22, 2020, we reported on the Equal Employment Opportunity Commission’s (“EEOC”) Pilot Program which modified certain aspects of the EEOC’s mediation program. In October, 2020, the EEOC announced proposed changes to its conciliation process.  Conciliation differs from mediation in that mediation provides both parties an opportunity to mediate and potentially resolve a charge of discrimination shortly after it is filed and before the EEOC begins its investigation. Conciliation is a voluntary alternative to litigation which arises after the EEOC has investigated a charge and determined reasonable cause exists that an employer has discriminated against an employee.

Between 2016 and 2019, the EEOC conciliation process effectively resolved only 41.23% of discrimination charges where a reasonable cause finding was made against an employer. In an effort to improve the conciliation process, the EEOC is proposing amendments that will increase the amount of information available to an employer to make settlement of charges more likely.  In particular, a brief summary of the EEOC’s proposed amendments are as follows:

  • The EEOC will provide employers with a written summary of known facts and non-privileged information the EEOC relied on in making its findings. This includes identifying aggrieved employees for whom the EEOC is seeking relief.  Additionally, the EEOC will have discretion to provide detailed information to an employer such as identities of alleged harassers or supervisors and if a class action is being pursued, the estimated size of the proposed class.
  • The EEOC will provide a summary to the employer of the legal basis for a finding of reasonable cause. If there was any doubt that reasonable cause existed to believe discrimination occurred, the EEOC will explain how reasonable cause existed despite this information. The EEOC may also provide a response to any defenses raised by an employer.
  • The EEOC will provide employers with a basis for a request for monetary relief including any calculations underlying the proposal and will provide the employer at least 14 calendar days to respond to the initial settlement proposal.

The EEOC’s proposed rules are subject to comment from interested parties and have not yet been adopted.  If the EEOC implements these new amendments, employers are likely to have a better understanding as to how the EEOC reached its determination, as well as its rationale for any relief it is seeking on behalf of an aggrieved employee. Previously, the EEOC was under no obligation to provide this information, which often left employers with insufficient information to determine if a settlement should be considered prior to the EEOC filing litigation against the employer.