EEOC final rule on conciliation in jeopardy?

Earlier this year, the EEOC issued a final rule on conciliation. Conciliation is like a settlement conference in that it is a process in which the EEOC meets with the employer, and usually involved charging parties, and a settlement is possible; however, it is different in that, at a conciliation, unlike at a settlement conference, the EEOC has determined Probable Cause exists to believe there has been a violation and further the EEOC’s goal is not to reach an amicable resolution but to eradicate and prevent ongoing violations. The EEOC’s conciliation process is often unproductive and frequently triggers litigation, as the EEOC’s good faith effort to resolve the case at the conciliation is a prerequisite to its later ability to initiate a lawsuit.  In an effort to clarify its conciliation process and to make it more likely to produce a settlement, the EEOC’s final rule requires the EEOC to, among other things, inform the employer of the facts underlying its Probable Cause determination, in more detail than had previously been required, including to describe in more detail any injured parties for whom relief is sought. The EEOC acknowledges there may be an exception if the individual has requested anonymity. The EEOC will also provide a recitation of the legal basis for its claims and a calculation of any remedies sought. The company will be allowed at least 14 days to consider and respond to the EEOC’s initial proposal.

The EEOC’s final rule has already proven controversial. Although the rule was welcomed by employers, including by SHRM, the Senate has voted to rescind it.