©2024 Seyfarth Shaw LLP EEOC-INITIATED LITIGATION: 2043 EDITION | 57 retaining flexibility over the conciliation process would “more effectively accomplish its goal of preventing and remediating employment discrimination.” 96 The notice also acknowledged that the EEOC’s conciliation efforts had not been terribly successful at resolving charges.97 In an effort to improve the effectiveness of the conciliation process, the notice included proposed amendments meant to establish “basic information disclosure requirements that will make it more likely that employers have a better understanding of the EEOC’s position in conciliation and, thus, make it more likely that the conciliation will be successful.” 98 The changes proposed by the EEOC were seen by many as a welcome attempt to address this issue, the Republican-led Commission adopted the Final Rule in January 2021, just before the new Biden administration was sworn in. The new rule went into effect on February 16, 2021, but while it was lauded by employers, it did not survive long. Congress exercised its authority under the Congressional Review Act to overturn executive branch regulations within 60 legislative days of when they were issued.99 Before June 2021 ended, both100 houses101 of Congress passed resolutions to rescind the rule, which the White House signed the resolutions into law.102 Short of any explicit requirements for the EEOC to follow, employers must be diligent and sometimes creative about drawing the EEOC into meaningful and productive settlement discussions. For employers, a longer conciliation process generally is better, as it suggests that the EEOC is more engaged in a give and take process about how to resolve the dispute without resort to litigation. In contrast, a short conciliation suggests that one or both parties are unwilling to bend their positions to negotiate a mutually acceptable outcome. Conciliation agreements that the EEOC accepts commonly include requirements such as posting a notice of non-discrimination; reviewing and revising policies; providing training; and submitting reports to the EEOC for a period of time. Employers can negotiate the specific terms, though, such as the content of any notice, or where it is posted; which employees must complete the training; the contents and frequency of submission of any reports; or the duration of the agreement. The EEOC may also ask the employer whether they will agree to make the settlement public via a press release. Experienced counsel may be able to save an employer significant sums of money not just through the economic relief, but by understanding how to agree on points important to the EEOC while ensuring that programmatic relief does not needlessly burden the employer. Timing and Statistics in Conciliation. The EEOC does not report detailed statistics about its process and timelines for moving an investigation from determination, to conciliation, to litigation. However, following the Supreme Court’s Mach Mining decision, the EEOC began to include information in its complaints about how the process played out in each particular case. Seyfarth collects and analyzes that information annually, and as a result we are able to describe how long it takes for the EEOC to move from step to step, as well as the relative pace of the EEOC District Offices. Duration of Conciliation. If you are an employer that has responded to a charge and just received a letter of determination, how long can you expect the EEOC to engage in conciliation? According to our analysis, the median time spent in conciliation is 53 days. For most employers, the EEOC will declare that conciliation has failed in three months or less. In some instances, however, conciliation has lasted for years. 96 Update of Commission’s Conciliation Procedures, 85 Fed. Reg. 64079 (proposed Oct. 9, 2020) (to be codified at 29 C.F.R. pt. 1601 and 1626). 97 Id. Over the last several years, the EEOC’s conciliation efforts resolved less than half of the charges where a reasonable cause finding was made. Specifically, between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations with employers were successful. 98 Id. 99 See Congressional Review Act, 5 U.S.C. § 801. 100 S.J. Res., 117th Cong. (2021). 101 H.R.J. 33, 117th Cong. (2021). 102 Remarks on Signing Legislation Regarding Methane Pollution, Predatory Lending, and Employment Discrimination, Daily Comp. Pres. Doc. DCPD202100551 (June 30, 2021).
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