For the first time in 40 years, the EEOC has substantially updated its rules on conciliation. It’s important for employers to understand the changes, which, according to the agency, endeavor to increase transparency and efficiency.

About Conciliation

After making a finding that sufficient evidence supports a charge of discrimination, but before deciding whether to sue the employer, the EEOC’s statutory framework requires it to attempt to resolve the issue through “informal methods of conference, conciliation and persuasion.” During conciliation, the EEOC investigator works with the employee and the employer to reach mutually agreeable remedy to the alleged act of employment discrimination.

The New Rule

Under the final rule, the EEOC must:

  • Provide the employer with a summary of the facts and non-privileged information that the agency relied on in finding reasonable cause for the employee’s claim.
  • Distribute a written summary of the EEOC’s legal basis for finding reasonable cause.
  • Give an explanation about the calculations and methods used to determine the relief the EEOC is seeking. This is only required for the agency’s initial proposal and does not apply to counter-offers made during the course of negotiations.
  • Identify whether it has designated as a systemic, class, or “pattern or practice” claim.

The EEOC will allow employers at least fourteen calendar days to respond to the agency’s initial conciliation proposal.

Generally, this seems like a positive development. The new rules provide greater transparency for employers. Conciliation, which is a voluntary process, allows the parties to resolve a case early in its lifespan and prior to the institution of any formal litigation. During conciliation, employers can weigh the strength of the case and decide whether or not litigation is the best course of action. If executed correctly, this could result in significantly decreased litigation expenditures for employers.

About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.

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