Uscc comments to eeoc on conciliation


November 09, 2020


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

By electronic submission:

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 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.

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.

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

Uscc comments to eeoc on conciliation