ESR Check

Written By ESR News Blog Editor Thomas Ahearn

On October 9, 2020, the Federal Register published a Notice of Proposed Rulemaking (NPRM) from the U.S. Equal Employment Opportunity Commission (EEOC) that proposes to amend procedural rules in order to enhance the effectiveness and accountability of the conciliation process, according to a press release from the EEOC.

Under section 706 of Title VII of the Civil Rights Act of 1964, Congress instructed that after the EEOC has found reasonable cause for any charge, “the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.”

As a result, the EEOC may only commence a civil action against an employer if the Commission has not been able to secure a conciliation agreement that is acceptable to the Commission. The public now has 30 days to provide comments on the NPRM. The comment period will end on November 9, 2020.

In 2015, the Supreme Court of the United States addressed the EEOC’s conciliation requirements in the case Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015). In that case, the Supreme Court noted that conciliation plays an important role in achieving Congress’s goal of ending employment discrimination.

The NPRM proposes to amend procedural conciliation regulations governing Title VII, Americans with Disabilities Act of 1990 (ADA), Genetic Information Nondiscrimination Act of 2008 (GINA), and the Age Discrimination in Employment Act of 1967 (ADEA) cases to outline steps that the EEOC will take in the conciliation process.

The EEOC is seeking input through the notice and comment process on the question of whether these proposed amendments will result in additional challenges to the Commission’s conciliation efforts, and whether such challenges would delay or adversely impact litigation brought by the Commission.

The EEOC – which advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination – believes that these requirements will enhance efficiency and transparency, and better encourage a negotiated resolution when possible. To learn more about the EEOC, visit www.eeoc.gov.

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