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EEOC conciliation reforms reversed

A joint resolution that withdraws conciliation reforms the Equal Employment Opportunity Commission (EEOC) had made under the Trump administration has been signed by President Joe Biden.

The reforms, which went into effect in January 2021, required an increase in transparency by the agency and were widely regarded as a benefit to companies seeking to proceed through an EEOC investigation and avoid litigation.

A mediation-like process

A mandatory conciliation process takes place after the EEOC has found that there is reasonable cause to believe an employer has violated the law. Like mediation, it is the process that an EEOC investigator uses to try to resolve its issues with the employer’s practices.

The reforms required the EEOC to provide employers with “a written summary of the known facts,” among other information, when an employee files a discrimination charge.

The reforms were intended to give employers better information on the findings in conciliated cases and encourage voluntary resolution of disputes outside of court.

At the time, EEOC Commissioner Keith Sonderling, who was then-EEOC vice chair, said that the agency is only able to litigate a small number of the cases that are not resolved through conciliation. He said that the rule made the process easier for employers by offering them the information needed “to decide whether it is in their best interest to settle the matter or litigate.”

The Society for Human Resource Management (SHRM) strongly opposed reversing the reforms. Before the resolution was passed, it sent a letter to congressional leaders stating that the conciliation process allowed the EEOC “to more promptly resolve disputes and prevent discrimination in the workplace while avoiding the cost of drawn-out litigation and lengthy delays in satisfactory resolutions of employee concerns.”

But opponents of the reforms said that the changes had given some businesses too much information about findings against them, which provided ammunition in potential future litigation and settlement discussions.

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