UPDATE: July 1, 2021: President Joe Biden signed the joint resolution Wednesday, according to the White House.
- The House of Representatives voted to approve Thursday a joint resolution disapproving of a January final rule published by the U.S. Equal Employment Opportunity Commission that made changes to the agency's conciliation process.
- The final rule updated EEOC's conciliation process for charges involving the Age Discrimination in Employment Act, Americans with Disabilities Act, the Genetic Information Nondiscrimination Act and Title VII of the Civil Rights Act of 1964. The rule revised the agency's information-sharing requirements during conciliation, "particularly with respect to its findings and demands," per the rule.
- Originally introduced and passed in the Senate, the resolution now moves to the desk of President Joe Biden.
EEOC published the conciliation final rule during the final weeks of the Trump administration. Prior to the rule's publication in The Federal Register, the commission voted 3-2 along party lines to approve it. The rule passed over several objections offered by current EEOC Chair Charlotte Burrows and Commissioner Jocelyn Samuels, both Democrats.
Upon publication, EEOC said the rule would "put beyond reasonable dispute in most, if not all, cases" the commission's compliance with the U.S. Supreme Court's 2015 ruling in Mach Mining v. EEOC. In that case, a unanimous court held that courts had the authority to review whether the EEOC fulfills its duty to attempt conciliation under Title VII. It also held that, in order for EEOC to comply with Title VII's conciliation provision, the agency must inform employers about specific discrimination allegations, including a description of what the employer has done and which employees, or class of employees, have suffered.
The rule also aimed to "increase the effectiveness of [EEOC's] efforts to achieve cooperation and voluntary compliance," the agency said in a Jan. 11 statement accompanying the final rule's publication.
The agency originally piloted changes to its conciliation process as well as its mediation process last year via two six-month programs. At the time, the Republican-led commission said the pilot programs were intended to expand opportunities for employers and their workers to resolve charges through voluntary resolutions rather than investigation or litigation. Following Biden's inauguration, EEOC closed the two programs.
Following news of the joint resolution's approval Thursday, EEOC published a statement in which it said its conciliation process would "again be governed by the standards set forth by the Supreme Court in Mach Mining."
"The action by Congress restores the Commission's flexibility to tailor the conciliation process to the facts and circumstances of each case, thus increasing the likelihood of a successful resolution," Burrows said in the statement. "EEOC is committed to resolving cases in conciliation whenever possible as one of the most effective means to remedy and prevent discrimination in the workplace."
Fewer than half, 43.6%, of EEOC cases resulted in successful conciliations during the agency's 2020 fiscal year, according to its 2020 annual performance report. But that figure represented an increase from 27% of such cases in its 2010 fiscal year.