On October 9, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued a proposed rule regarding its conciliation procedures when attempting to negotiate a settlement between an employer and the charging party. The EEOC enforces federal anti-discrimination statutes in the employment context. This includes Title VII of the Civil Rights Act of 1964, which bans discrimination based on an individual’s membership in a protected class such as race or religion, and the Americans with Disabilities Act which bars discrimination on the basis of a disability.
After a charge of discrimination is filed with the EEOC, the Employer will have an opportunity to respond before an EEOC investigator is assigned to gather facts regarding the charge. If the investigator finds reasonable cause to believe that discrimination has occurred, they will invite both parties to enter a settlement process known as conciliation. The EEOC Conciliation process has long been a source of great frustration to employers because the current EEOC rules block employers from accessing any information gathered by the investigator. As a result, employers are forced to negotiate a settlement armed with only the information available to them through their own internal investigation. This creates difficulty for employers when attempting to evaluate the credibility of a charge of discrimination and the possible value of a settlement.
In a positive development for employers, the EEOC issued a proposed rule on October 9, 2020 which will likely balance this bargaining inequity between the sides and encourage more settlements during the conciliation process. The proposed rule will require the EEOC to provide the employer with the following information during conciliation: (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 EEOC’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 proposed rule, if adopted as currently written, provides a more even playing field for employers tasked with evaluating the merits of a charge of discrimination. The public comment period ends November 8, 2020.
The attorneys at Fishel Downey Albrecht & Riepenhoff, LLP regularly defend employers against EEOC charges and lawsuits based on allegations of discrimination. If you have any questions about this or any other matter, please contact us at info@fisheldowney.com or call 614.221.1216.