On October 9, 2020, the EEOC submitted a proposed rule in the Federal Register to change the conciliation procedures in an employment discrimination lawsuit.
Basically, a conciliation is a required mediation of the discrimination case undertaken after EEOC finds reasonable cause for a charge, but before a lawsuit is filed. Historically, the process has been a mystery for employers as EEOC kept the steps, charges, and process secret. This mystery has resulted in approximately 1/3 of employers refusing to participate in conciliation even though the process is confidential and can't constitute evidence against such employer (unless otherwise agreed upon in writing).
The proposed rule requires that "the Commission will provide to the respondent, if it has not already done so:
(1) A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that 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;
(2) 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 the course of its investigation that raised doubt that employment discrimination had occurred;
(3) the basis for any relief sought, including the calculations underlying the initial conciliation proposal; and
(4) identification of a systemic, class, or pattern or practice designation. The Commission also proposes to specify that the respondent participating in conciliation will have at least 14 calendar days to respond to the initial conciliation proposal from the Commission."
These rules are terrific and will result in increased settlements because an employer now has the ability to ascertain risk and then, strategically engage in meaningful settlement discussions in the conciliation process rather than blindly throwing money at a situation to make it go away.
We encourage you to comment on the proposed rule should you have any suggestions to enhance its effectiveness by writing your thoughts, up until November 9, 2020, and sending them by mail, with reference to RIN Number 3046-AB19, to Bernadette B. Wilson, Executive Officer, Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507.
