Articles

October 9, 2020

Last week the U.S. Equal Employment Opportunity Commission (the “EEOC”) proposed regulations aimed at creating more settlements and fewer lawsuits.  The intent behind the new regulations is to enhance the EEOC’s “conciliation” process with the hopes of resolving workplace bias claims before they advance to litigation.
Under the conciliation process the EEOC hopes to obtain voluntary compliance from employers pre-suit.  The process is designed to be informal and confidential.  A request by the EEOC to participate in the process is a prerequisite to an EEOC suit under Title VII of the Civil Rights Act (“Title VII”).

The conciliation process is not new.  What is new is the increased clarity and information the EEOC is willing to provide in the conciliation process to help try to resolve claims pre litigation.

The new regulations are designed to give employers a better understanding of the EEOC’s position, including, providing employers with the following:

• a written summary of known facts and non-privileged information;
• the identity of the individuals or group who filed the complaint (unless they have requested anonymity);
• the criteria used for adding any previously unidentified aggrieved workers to a claim;
• the basis behind finding reasonable cause;
• any information uncovered that may cast doubt on the veracity of a claim;
• the basis for any monetary remedies being sought through the conciliation process; and
• the identify of any allegations of “systemic, class, or pattern or practice” the agency intends to pursue.

During the announcement the EEOC stated, “The commission believes these steps will enhance efficiency and better encourage a negotiated resolution when possible.” The Commission believes that these efforts will help remedy unlawful discrimination more quickly and avoid the risks inherent in litigation.

Historically, the conciliation process was designed to permit an employer and the Agency to negotiate changes to an employer’s practices and policies to bring the employer in compliance with Title VII and to provide a forum to determine the amount of damages (if any) the employer would pay to an aggrieved party.  The intent of the conciliation process has always been positive and in the best interest of the employer, employee and the government.   However, in practicality, the conciliation process has often been seen by employers as very one sided and pro-employee.  Often times employers have been faced with choosing between settling what appear to be groundless claims or incurring significant expense in defending enforcement lawsuits against the EEOC.  Employers have felt helpless because of the lack of transparency in the conciliation process.  Employers have been forced to assess EEOC demands without the benefit of knowing what evidence actually exists to support any potential findings. 

It is hoped that the transparency offered under the new regulations will create balance in the process and lead to more settlements and fewer lawsuits.  The draft regulations are open for 30 days of public comment.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.