EEOC pilots more structured conciliation process

Dive Brief:

• The U.S. Equal Employment Opportunity Commission (EEOC) began a six-month pilot program May 29 for "greater structure and transparency" in conciliation, an EEOC spokesperson told HR Dive June 4. The temporary changes affecting the commission's pre-suit process which aims to settle claims would require that conciliation offers be "approved by the appropriate level of management" before they are shared with the parties involved in the case. The levels of management were not indicated. 
• The pilot program will allow "unlawful employment practices to be resolved more quickly," while renewing a commitment to full communications between the agency and the parties involved, the EEOC spokesperson said. The initiative is within Dhillon's "authority over administrative operations of the commission," according to the spokesperson. The full details of the pilot program have not yet been released.
• Conciliation is an informal and confidential effort to resolve claims before the commission sues an employer. When the EEOC determines there is reasonable cause to believe discrimination has occurred, the agency submits its assessment to the employer, notifies the parties of its determination and the conciliation process begins.

  Dive Insight:

  The EEOC enforces federal nondiscrimination employment laws. Generally, before suing employers, workers must file a complaint with the agency, which could advocate on their behalf in a lawsuit. Conciliation, required by Title VIl of the 1964 Civil Rights Act, is a voluntary process for employers. Neither the EEOC or the employer can be forced to accept particular terms, according to the agency.

  Conciliation can provide monetary relief to alleged victims of discrimination, settling claims and prohibiting future violations. The U.S. Senate confirmed Dhillon, one of President Donald Trump's nominees for the EEOC, in May 2019. The conciliation pilot program falls within Dhillon's administrative authority to initiate, according to the EEOC, but Charlotte Burrows, a Democratic EEOC commissioner, argued the commission as a whole sets policy. 

  "The commission — not the chair alone — sets policy for the EEOC," Burrows said on Twitter June 1. "The EEOC conciliation pilot should be rescinded to allow the commission to consider whether any changes are needed to the conciliation process and, if so, what they should be."

  She added, "It's fundamental to EEOC's mission to eliminate unlawful job discrimination [and] far too important a subject for unilateral or hasty action."

  In 2019, despite some setbacks, the EEOC "continued ​to pursue aggressive litigation and close out settlements at high rates" according to a December report by Seyfarth Shaw LLP​.  However the EEOC "was not firing on all cylinders for a significant part of the year," Seyfarth noted, because of a political shutdown and because the commissioners lacked a quorum. But as new appointees begin their positions, employers may see changes in the EEOC's strategic direction, according to the report.

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