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EEOC Chair Alters Pre-Lawsuit Process for Resolving Bias Claims

June 2, 2020, 12:44 AM

The Republican head of the EEOC rolled out temporary changes to how the workplace civil rights agency seeks to settle bias allegations before it pursues litigation, a move that a Democratic commissioner called an “end run around the Commission” because it wasn’t put to a vote.

Equal Employment Opportunity Commission Chair Janet Dhillon notified agency officials of the pilot program on May 29, Democratic Commissioner Charlotte Burrows said. The six-month pilot will change how the agency conciliates discrimination and harassment allegations in an effort to “provide greater structure and transparency,” an agency spokesman told Bloomberg Law.

After the agency finds reasonable cause that discrimination occurred, Title VII of the 1964 Civil Rights Act requires it to engage in the conciliation process before suing an employer. The new program is “aimed at ensuring that unlawful employment practices are resolved more quickly, thus conserving the agency’s and the parties’ resources, improving workplace policies and preventing discrimination from occurring,” the spokesman said.

It also will add “a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents.” The pilot has not been released publicly, and it wasn’t immediately clear what was meant by an “appropriate level” of management.

‘Unilateral Action’ Questioned

Burrows, who provided a statement to Bloomberg Law and also made similar comments via Twitter on Monday night, said Dhillon lacks the authority to change the process, and called for the program to be scrapped.

“Conciliation has a direct, real world impact on the rights of every employee who experiences unlawful discrimination, harassment, or retaliation at work,” she said in the statement, adding: “Conciliation is too important a subject for unilateral action by the Chair, and I urge Chair Dhillon to reconsider her decision.”

Burrows is the sole Democrat on the Commission. Dhillon and Commissioner Victoria Lipnic are the two Republicans. The commission’s two remaining seats are vacant.

Burrows noted that Congress gave the commission authority to make major changes to the conciliation process. The EEOC’s leadership panel has used this power to outline procedures for conciliation through regulations, via the agency’s compliance manual, and through other policy documents—"all of which were approved by a Commission vote,” she added.

The agency spokesman said creation of the pilot “falls within the Chair’s authority over administrative operations of the Commission,” under Title VII.

The debate over judicial review of conciliation has been heavily litigated, and the U.S. Supreme Court in 2015 said the agency has broad discretion over the process. The boundaries of that ruling have been explored by lower courts, including in a case last year in which Walmart sought greater transparency over pre-lawsuit efforts to settle discrimination allegations. The U.S. District Court for the Southern District of Texas said the agency didn’t have to hand over the information to the retailer.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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