At our law firm, we represent employees and job applicants who experienced unlawful employment discrimination, harassment or retaliation. Victims may decide to file claims against their employers with the U.S. Equal Employment Opportunity Commission (EEOC), the primary federal agency that enforces anti-discrimination laws.

Administrative procedures before the EEOC

Title VII of the Civil Rights Act and other federal anti-discrimination laws require the EEOC to attempt to resolve these disputes between employees and employers informally before considering lawsuits. During the EEOC administrative process:

• Employee files complaint of unlawful employment discrimination.
• Voluntary mediation is available between the employee (charging party) and their employer (respondent) to attempt to settle the dispute.
• If mediation fails or the parties do not consent to it, EEOC investigates employee’s allegations.
• If the EEOC finds insufficient evidence of unlawful discrimination, the agency dismisses the claim and gives the charging party written notice of their right to sue in court.
• If the agency finds “reasonable cause” of discrimination, it notifies both parties and offers to participate with them in a voluntary, confidential process called conciliation.

EEOC issues new rule that will change conciliation procedures

Required by law to try to conciliate discrimination allegations, the EEOC promotes this dispute resolution method as an “efficient, effective, and inexpensive method of resolving employment discrimination charges.” The EEOC investigator in conciliation works with the parties to attempt to negotiate a settlement. Conciliation is informal and voluntary but may give the employee an opportunity to consider a reasonable settlement in lieu of a lawsuit likely to be long and expensive.

On Jan. 14, the EEOC’s new rule that updates conciliation procedures was published in the Federal Register. It takes effect on Feb. 16, 2021, applicable to disputes for which an invitation for conciliation is sent on or after that day.

The agency writes in the introduction to the rule change that the law encourages cooperative resolution of discrimination charges to avoid the time and expense of litigation while resulting in improved workplaces. The EEOC has not “significantly” updated conciliation procedures since 1977 and these changes aim to increase the number of employers that will participate as well as to make the process more effective.

The new rules will require the EEOC to provide clear information to the parties about its specific investigative findings and the “essential facts and the law supporting the claim, findings, and demands.” With this transparency, the agency hopes to make the process more focused and efficient.

Employee advocates will watch the new conciliation procedures with keen interest to see how they impact victims of employment discrimination. An employment attorney can analyze for their clients whether the revised process seems a good option for their interests. Should conciliation be refused or fail, the agency has the option to take the matter to court, as does the employee.