Recent federal court cases, most notably the 2015 Supreme Court decision in Mach Mining, LLC v. Equal Employment Opportunity Commission, have prompted the EEOC to issue a new rulemaking to update the agency’s 43 year old conciliation practices.
The proposed rulemaking would commit the EEOC to providing respondents with:
- A summary of the facts and non-privileged information that the Commission relied on in its reasonable cause finding, and in the event that it is anticipated that a claims process will be used subsequently identify aggrieved individuals, the criteria that will be used to identify victims from the pool of potential class members;
- A summary of the Commission’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts, as well as non-privileged information it obtained during the course of its investigation that raised doubt that employment discrimination occurred;
- The basis for any relief sought, including the calculations underlying the initial conciliation proposal; and
- Identification of a systemic, class, or pattern or practice designation.
These requirements would apply to actions brought under all of the EEOC’s authorities that require conciliation efforts, specifically Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the Age Discrimination in Employment Act (ADEA).
The proposal would also provide respondents with 14 calendar days to respond to the initial conciliation proposal from the Commission.
The EEOC is seeking public comment on the proposed rulemaking in general, but specifically asks for input regarding whether the Commission should specify that its disclosures must only be done in writing or if it should allow for oral disclosures. Comments must be received by November 8, 2020, and may be submitted online at www.regulations.gov.
