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EEOC Conciliation Rule Advanced to White House Review (1)

Aug. 18, 2020, 7:15 PMUpdated: Aug. 18, 2020, 10:34 PM

The Equal Employment Opportunity Commission advanced a regulatory proposal that could expand how much information it provides employers during its conciliation process for resolving workplace discrimination allegations, a potential change agency leaders hope would encourage participation.

The workplace civil rights agency’s leadership panel voted along party lines Tuesday to approve sending a proposed rule to the White House Office of Management and Budget for review—a final step before it can be released to the public.

The agency uses conciliation as an alternative to litigation. The confidential process is voluntary for employers. It comes after the agency has investigated an allegation that an employer has discriminated against a worker and investigators reasonably determine a workplace civil rights law has been violated.

The agency is proposing to amend the process to “ensure that certain threshold information has been provided to any employer that agrees to participate in conciliation,” EEOC legal counsel Andrew Maunz said during a public meeting Tuesday. The proposal could give structure to a process over which the U.S. Supreme Court said in 2015 the agency has broad discretion, particularly in how it engages with an employer during resolution talks.

The rule would do this by expanding how much information the agency turns over to a respondent during the conciliation process, and by setting guidelines for the process, Maunz said. The agency would provide the employer with a written summary of the facts on which it relied when determining a worker was discriminated against, including identifying the worker or workers who alleged bias, unless they want to remain anonymous, Maunz said.

The proposal also would outline the legal basis for determining the employer discriminated against the worker, and the calculation the agency uses to determine the relief, monetary and otherwise, it seeks for that worker, he said.

‘Better Position’

A conciliation rulemaking would put the agency in a “better position” to resolve bias allegations, Maunz said. The agency’s successful conciliation rate reached 40% in fiscal 2019, and the successful conciliation rate for systemic charges of discrimination increased to 56% in the same year, according to an annual performance report.

But Maunz said more can be done to encourage employers not to opt for litigation. “Part of the Commission’s lack of success in conciliation is attributable to the fact that an estimated one third of employers who receive a reasonable cause finding decide not to even participate in conciliation,” he said. “Such a widespread rejection of the process suggests that many employers do not believe participating in conciliation with the EEOC is worthwhile.”

The commission’s Republican members, Chair Janet Dhillon and Commissioner Victoria Lipnic, voted in favor of advancing the proposed rule, while Democratic Commissioner Charlotte Burrows was opposed. The agency’s five-person leadership panel now has two vacancies.

The proposed rule will be published in the Federal Register if it is approved by OMB, kicking off a 30-day public-comment period.

The agency said in a media release after Tuesday’s vote that it wants the public to weigh in on whether the proposed changes “will result in additional challenges to the Commission’s conciliation efforts, and whether such challenges would delay or adversely impact litigation brought by the Commission.”

Proposed Changes

The proposed rulemaking, which the agency previewed in the administration’s spring 2020 regulatory agenda, follows a conciliation pilot program Dhillon rolled out unilaterally in June.

That program, slated to last six months, included changes similar to Maunz’s description of the proposed rule, including more procedural oversight. It has drawn mixed reviews of whether it could effectively resolve bias complaints.

Burrows, the Democratic commissioner, said she’s concerned that disclosing more information to employers would bog down the deliberative process.

“Worst of all, it would require the Commission to disclose privileged information and reveal the names of witnesses and victims brave enough to aid our investigations,” she said in a written statement provided Tuesday to Bloomberg Law.

(Updated with additional reporting throughout.)

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; Karl Hardy at khardy@bloomberglaw.com

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