Comments to EEOC re: Conciliation Procedures

Monday, November 9, 2020 - 8:30am

Ms. Bernadette B. Wilson
Executive Officer
Executive Secretariat
U.S. Equal Employment Opportunity Commission
131 M Street, NE
Washington, DC 20507

By electronic submission: www.regulations.gov

RE : Proposed Update of C ommission ’s C onciliation P rocedures ; RIN: 3046 -
AB 19 ; 85 Fed. R eg. 64079 (October 9, 2020)

Dear Ms. Wilson:

The U.S. Chamber of Commerce appreciates the Equal Employment Opportunity
Commission’s (EEOC) proposed rules updating and clarifying the rules governing the
conciliation process for resolving allegations of unlawful employment practices (85 Fed. R eg.
64079) . The Chamber has always believed that conciliation is the best method for seeking
resolution and therefore strongly supports the EEOC’s proposed rulemaking.


The EEOC’s proposal flows from the Congressional direction in Title VII of the Civil
Rights Act o f 1964 that after the EEOC has found reasonable cause for a charge of unlawful
employment practice “the Commission shall endeavor to eliminate any such alleged unlawful
employment practice by informal methods of conference, conciliation, and persuasion.” 4 2
U.S.C. 2000e -5(b). And further that using these methods is a precondition to the EEOC
commencing a civil action.


Unfortunately, over the years, what constitutes EEOC making an effort at conciliation has
varied and been diluted to the point that any pe rfunctory attempt to hold a conference is now
considered enough to satisfy the precondition required before the EEOC files a legal action in
court. The proposed regulation would rectify this problem by formally setting out how
conciliation is to proceed a nd what all parties should expect. EEOC’s regulation will apply not
only to cases arising under Title VII, but to cases under the other laws within EEOC’s
jurisdiction: the Americans with Disabilities Act, the Genetic Information Nondiscrimination
Act, and the Age Discrimination in Employment Act.

The nature of the disputes that arise under the laws overseen by EEOC is uniquely fact
based. Issues arise in the workplace, including the hiring and firing of employees , which areoften based on various levels o f employer operations such as HR intake personnel, first line
managers , or supervis ors attempting to apply general personnel policies to specific workplace
actions. Generally, these disputes are not the result of an employer’s specific policy.

When an individual believes that he or she is aggrieved by employer action based upon
any of the statutorily protected characteristics, there is an absolute right to file a complaint in
order to protect their rights. The EEOC, as the federal agency responsible for p rocessing th ese
complaints has a statutory, and legal, duty to investigate these complaints and initiate a process
to resolve the issues raised. While its role is not entirely passive, it must be neutral. Its duty is
to structure the informal process, i .e. conciliation , so that the parties are fully cognizant of the
actual facts underlying the complaint, and, with the EEOC explaining how the law has developed
so that t he facts may be applied against that legal context.


Accordingly, conciliation is only possible if the parties are provided all of the facts. The
conciliation process is designed to be confidential to allow each party to set forth their case
supported by facts so that the other party ma y fairly determine its response. While the charging
party (the employee or applicant) understands w hat has occurred and how he or she was
detrimentally affected, the employer is often not informed fully as to what has
occurred. Although the employer should generally be able to rely on the representations of its
managers or employees, it deserves to be fully info rmed of what the other party bel ieves
occurred. “Employer” is not a unitary construct but rather consists of different layers of
personnel. Therefore, the “employer’s” response must be based on a full knowledge of the facts
as understood by all parties.


The EEOC proposal makes simple, but impactful, amendments to the conciliation process
to make it viable and meaningful. In proposed section 1601.24 (d)(1) et. s eq., it establishes a
protocol so that the EEOC must offer its own understanding of the facts and apply them to the
law as it understands it , to justify the Commission’s reasonable cause determination. It also
requires that the essence of the charging party’s factual basis and complaint be dis closed to the
employer. This would enable the employer, in a relatively expeditious but reasonable amount of
time, to investigate the facts to its own satisfact ion and formulate a response.

Requiring these disclosures does not prejudice the chargin g party or the Commission. By
requiring the EEOC to justify its determinations up front, the slight added burden would surely
reduce litigations or investigations. Both parties would benefit from learning the agency ’s view
of how the law and the facts of a complaint should be consider ed within the legal framework.

The law and Commission rules make it absolutely clear that the disclosures and
interchanges in the conciliation process cannot be used in any subsequent proceeding such as
litigation. Disclosures during conciliation are to be kept strictly confidential. Indeed, the most
significant development in the various laws administered or enforced by the EEOC is the
emergence of the concept of retaliation which, if proved, is considered by defin ition intentional
and can result in significant penalties. This offers concrete protection to charging parties , or their
supporters , that any disclosure in the conciliation process cannot be used in any manner to harm
the individual.

For conciliation to work, and for it to achieve its intended purpose of fairly and
expeditiously resolving employmen t matters, all parties must believe that the process is fair and
neutral. The proposed regulation to strengthen the conciliation process will clearly help achi eve
that desired result. Although the notion that everybody has their right to a day in court is one of
our bedrock principles , the reality of the legal process is that a day in court may not be the best
method for resolving a dispute as it is likely a ve ry long, risky, and expensive process that may
not yield a satisfying result. Well conducted conciliation allows a complaint to be presented
fairly when a satisfying result can still be achieved quickly and inexpensively. Furthermore,
conciliation does n ot preclude further legal action if the two parties are unable to find a
resolution. The EEOC’s proposed regulation enhances the likelihood that conciliation will
produce results, thus ensuring that the purposes of the discrimination laws , and the intent of
Congress, can be met.


Sincerely,

Marc Freedman
Vice President, Workplace Policy
Employment Policy Division

Outside Counsel
Lawrence Z. Lorber
Seyfarth Shaw LLP
975 F Street, N.W.
Washington, DC 20004