April 16, 2021
HR Policy joined several other business groups in a letter calling on Congress to abandon its plans to rescind a recently-issued Equal Employment Opportunity Commission rule that prioritizes conciliation and mediation over litigation of employment discrimination claims.
The EEOC issued the final rule in January, which refocuses the Commission’s efforts toward engaging in conciliation and mediation before bringing suit against a party alleged to have engaged in a discriminatory practice. The EEOC is already obligated by Title VII to engage in conciliation efforts before initiating litigation—the rule merely set procedural guidelines for the conciliation process that provide much needed transparency for all parties. The rule also renewed the Commission’s commitment to resolving disputes through conciliation and mediation before litigation. HR Policy filed comments in support of the rule when it was originally proposed, and the final rule became effective in February.
Sen. Patty Murray (D-WA) and Rep. Bobby Scott (D-VA) filed resolutions to strike the rule under the Congressional Review Act (CRA), which allows Congress to rescind last-minute regulations. Congress has 60 legislative days to rescind the rule by simple majority vote. If Congress does vote to repeal the rule, the CRA also prohibits the rule being reissued in the same form or the issuance of a new rule that is substantially the same.
Our letter to Congress highlighted how the rule will enhance the conciliation and mediation process “by providing all parties with the factual and legal basis” underlying the discrimination claim, increasing the likelihood that conciliation will produce a settlement. This ensures that employees will get restitution sooner and with less cost than litigation.
“The Commission’s conciliation rule is one of the most important substantive rules it has approved, as conciliation, if properly utilized, can be a great assistance to all stakeholders in preventing unneeded and expensive protracted litigation,” said Roger King, Senior Labor & Employment Counsel, HR Policy.
Outlook: A vote on rescinding the conciliation rule has yet to be scheduled. Given the Democratic majority, a repeal is likely, especially since CRA votes in the Senate cannot be subjected to a filibuster.