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EEOC Considers Rule to Amend Conciliation Process

By Douglas Lipsky

The Equal Employment Opportunity Commission (EEOC) is considering a rule to amend its conciliation process for resolving workplace discrimination claims. The contemplated rule would expand how much information is provided to employers participating in the voluntary process. 

While the rule is intended to encourage greater employer participation in conciliation, rather than to pursue litigation, there are concerns that providing more information to employers would be a disadvantage to employees and could actually impede the process. 

In any event, the EEOC forwarded its proposed amendment to the White House Office of Management and Budget (OMB) for review in August. If the OMB approves the rule, it will then be published in the Federal Register with a 30-day public comment period. In the meantime, if you are considering filing a complaint with the EEOC, it takes a skilled employment lawyer to protect your rights during the conciliation process.

What is the EEOC Conciliation Process?

The EEOC conciliation process is similar to the mediation process, however conciliation is only possible after the agency has determined that (1) the employer has violated a federal employment law and (2) the employee is due some relief.

Before issuing the complainant a notice of right to sue, the EEOC will invite the employer to participate in conciliation. The process is voluntary and the employer can decide to litigate the case instead. During the conciliation process, the employer and the EEOC will negotiate an agreement on the damages to be awarded. If conciliation is successful, then the matter is resolved. If not, the EEOC will issue a right to sue letter to the employee. 

If your employer has agreed to participate in the conciliation process, don’t go it alone. Working with the right employment lawyer can help you obtain the full value of your claim, whether through conciliation or litigation.

How Will the EEOC’s Rule Amend the Conciliation Process?

The EEOC is proposing to amend the conciliation process by expanding the information the agency turns over to a respondent about its findings. In particular, the EEOC would provide the employer with a written summary of the facts on which it relied in determining that a worker was discriminated against. The summary would also identify the worker or workers who alleged bias unless they have chosen to remain anonymous.

The equal employment watchdog would also outline its legal basis for determining that the employer discriminated against the worker and the calculation used to determine the relief the agency is seeking for that worker.

In sum, the agency believes that the proposed amendment would encourage more employers to participate in the conciliation process and put the agency in a better position to resolve workplace bias claims. 

The Takeaway

Whether the proposed amendments to the conciliation process will allow the EEOC to resolve bias claims more effectively is uncertain. Ultimately, the best way for employees to protect their rights is to consult with an experienced employment discrimination attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.