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 EEOC must provide employers engaging in the conciliation process certain information, including more details and facts of the case in question as well as some of the EEOC’s legal rationale in bringing its charge of discrimination;
- The EEOC must provide employers a basis for any monetary remedies it seeks;
- The EEOC must notify employers if it is pursuing systemic, class, or pattern or practice allegations;
- Employers have at least 14 days to respond to any initial settlement offer.
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.
