January 15, 2021
The Equal Opportunity Employment Commission's (EEOC) final rule on conciliation procedures culminates its efforts toward promoting greater use of conciliation and mediation before litigation in employment discrimination claims brought before the Commission.
HR Policy filed comments with the EEOC regarding the proposed rule earlier this year, supporting the effort to prioritize conciliation over litigation but arguing for increased transparency in the process.
Under Title VII, the EEOC is obligated to engage in good faith conciliation efforts before bringing suit against a party alleged to have engaged in a discriminatory practice. The final rule sets procedural guidelines for the conciliation process and provides clarification of what constitutes “good faith conciliation.” Among the procedural requirements contained in the final rule:
The Association sought additional transparency requirements in the final rule in its comments to the proposed rule filed in October. Notably, the final rule eliminated a provision in the proposed rule that required the EEOC to provide employers any information it obtained during an investigation of a charge that suggested illegal conduct had not in fact occurred as part of its legal rational for finding reasonable cause.
Outlook: The EEOC’s renewed emphasis on the conciliation process prior to pursuing litigation is a welcome change to the Commission’s case handling process for employers, with the potential to reduce unnecessary and costly litigation.