Senate Votes to Strike Down EEOC Rule That Reduces Litigation

May 21, 2021

The Senate voted 50–48 to roll back an Equal Employment Opportunity Commission (EEOC) rule that increases transparency and prioritizes conciliation over litigation in employment discrimination claims, setting up a vote in the House.  HR Policy Association joined with other business groups in urging Congress to maintain the rule.

The EEOC’s rule required the Commission to provide a “written summary of known facts and non-privileged information relied upon by the EEOC in its reasonable cause finding.”  The summary is among other information the agency uses in fulfilling its requirement under Title VII to pursue good faith conciliation efforts prior to bringing a lawsuit against an employer.  Issued in January, the final rule went into effect February 16, 2021.  HR Policy previously filed comments in support of the rule, and urged Congress to not disapprove the rule. 

The rule “serves all stakeholders—employers, employees, and the agency—equally,” our letter states, “inasmuch as potentially wronged employees can obtain relief sooner, and with certainty, and no party is unnecessarily subject to the extended time and cost of protracted litigation.” 

“These standards are far from onerous and serve to ensure that the conciliation process is conducted in a manner that affords all parties their right to a meaningful exchange of information, toward the goal of successfully resolving a matter quickly and efficiently.” 

Looking ahead:  The House Education and Labor Committee has not yet moved on Chair Bobby Scott’s (D-VA) resolution to strike the rule (H.J. Res. 33), but a vote is expected shortly.  If repealed, the CRA prohibits the EEOC from adopting any “substantially similar” rule in the future, leaving Congress as the only potential source for a revival of the rule.