The Equal Employment Opportunity Commission (EEOC) on January 11 published its Final Rule amending procedural rules for its conciliation process. EEOC is statutorily required to engage in the conciliation process whenever it finds reasonable cause to believe that discrimination has occurred, and it may not commence litigation prior to engaging in the conciliation process.
This Final Rule is the culmination of the rulemaking process that began on October 9, 2020 when the EEOC issued a Notice of Proposed Rulemaking. As noted in our prior LawFlash, the stated goal of the now Final Rule is to enhance the effectiveness and accountability of the conciliation process, by promoting efficiency and transparency and better encouraging a negotiated resolution when possible. The Final Rule responds to longstanding complaints by employers about the conciliation process, including complaints about a lack of transparency in the process, inconsistencies between EEOC offices in how they conduct conciliations, and EEOC’s failure to disclose information regarding the basis for its findings or its demands for monetary relief.
To address such concerns, the Final Rule now requires that in any conciliation, EEOC will provide the respondent with all of the following:
Notably, the Final Rule removed a provision from the proposed rule that would have required the EEOC to share with the respondent all information that weighed against a reasonable cause finding. The EEOC explained that it removed this provision out of concern "about the potential for collateral challenges that this requirement may create."
As the presidential administration is changing next week, there may be activity in Congress seeking to repeal the Rule under the Congressional Review Act. Morgan Lewis will monitor and report on any such developments.
If you have any questions, or you would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Michelle Seldin Silverman