What actually happens if the EEOC thinks we discriminated against an employee? 😮

Imagine not only facing a Charge of Discrimination that one of your employees has filed with the United States Equal Employment Opportunity Commission but also enduring an investigation where the EEOC ultimately concludes there is reasonable cause to believe discrimination has occurred.

Uggh.

What’s next? Conciliation.

Both parties will receive a “Letter of Determination” telling them that there is reason to believe that discrimination occurred.  The Letter of Determination invites the parties to join the EEOC to try to settle the charge through an informal and confidential process known as conciliation.

Conciliation is voluntary. There are three alternatives:

1. The employee will later sue your company in federal court.
2. The EEOC will later sue your company in federal court.
3. Nothing else happens. (But the odds of that are slim and none).

In the past, the EEOC touted conciliation as “an efficient, effective, and inexpensive method of resolving employment discrimination charges.” But, employers have often been leery about participating, possibly because the EEOC has elected not to adopt detailed regulations to govern its conciliation efforts.

However, some newly-proposed EEOC rules may change all that.

The new EEOC conciliation rules.

On Friday, the EEOC announced here that it had published new proposed conciliation rules in the federal register.

The EEOC proposes to provide to any employer that participates in conciliation:

1. a summary of the facts and non-privileged information on which the EEOC relied in its reasonable cause finding, and if the EEOC anticipates using a claims process to identify aggrieved individuals, the criteria that the EEOC will use to identify victims from the pool of potential class members;
2. a summary of the EEOC’s legal basis for finding reasonable cause;
3. all non-privileged information that the EEOC obtained during its investigation that raised doubt that employment discrimination had occurred;
4. the basis for any relief sought, including the calculations underlying the initial conciliation proposal; and
5. identification of a systemic, class, or pattern or practice designation.

Additionally, the EEOC would give the employer at least 14 calendar days to respond to the EEOC’s first conciliation proposal.

What do I think about all of this? Well, I have an idea…

The Employer Handbook “Office Hours”

This Friday, October 16, 2020, at Noon EDT, join me on Zoom, where I’ll be holding Office Hours. Actually, it’ll be just an hour. But, that will be your opportunity to ask me whatever hypothetical HR-compliance question that your friend would like answered in a way that does not involve me giving any actual legal advice or creating an attorney-client relationship.

You dig? Ok, click here to register.

If “your friend” has one of those hypothetical questions, please email it to me with “Office Hours” in the email subject line. You’ll go to the front of the queue.

(I apologize for not replying to those who have already emailed me over the past few weeks. I can’t give specific legal advice to non-clients. Hey, I didn’t make the rules.)