EEOC to update conciliation process as Trump administration enters final days

UPDATE: Jan. 11, 2021: The U.S. Equal Employment Opportunity Commission sent the final rule updating its conciliation process to The Federal Register for publication, the agency announced Monday. The rule will take effect 30 days from the date of publication.

Dive Brief:

Members of the U.S. Equal Employment Opportunity Commission (EEOC) voted along party lines Thursday to approve a final rule that would make changes to the agency's conciliation process for charges involving the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act and Title VII of the Civil Rights Act.
The proposal would change the agency's conciliation process to disclose additional information to employers facing EEOC charges. During a public meeting Thursday, Commissioners Charlotte Burrows and Jocelyn Samuels objected to the conciliation final rule's approval and asked that it be postponed, but the rule passed over these objections.
In a related move, EEOC announced in a statement Wednesday the extension of a mediation program pilot that, in part, expanded the category of charges eligible for mediation. The pilot program will now continue through Sept. 30, 2021, EEOC said.

Dive Insight:

The final rule updating EEOC's conciliation process comes less than three months after the agency issued a Notice of Proposed Rulemaking on the subject.

The rule is "similar" to the initial proposal, EEOC legal counsel Andrew Maunz said during Thursday's meeting, as it requires EEOC to provide four additional pieces of information to respondents. The first is a summary of the facts and non-privileged information that EEOC relied on in its reasonable cause finding as well as the criteria that will be used to identify victims from a pool of potential class members. EEOC would also be required to provide a summary of legal basis for its reasonable cause finding; the basis for any relief sought; and the identification of a systemic, class, or pattern or practice designation.

Notably, the final rule clarifies that everything provided to the charge respondent under the rule would also be disclosed to the charging party, Maunz said.

Both Burrows and Samuels criticized the timing of the rule relative to the period of public comment. "I think this process has been compromised by the breaking pace in which this rulemaking has proceeded," Samuels said, adding that the rule "would be an arbitrary and capricious exercise of the commission's authority that puts a thumb on the scale in favor of the very employers the commission had sound, reasonable cause to believe violated our civil rights laws."

EEOC's majority defended the rule. Commissioner Keith Sonderling said the regs would "further support" EEOC's reasonable cause findings and benefit respondents as well as charging parties who might otherwise choose not to sue.

The commission also voted to approve Thursday an opinion letter concerning individual coverage health reimbursement arrangements under the Age Discrimination in Employment Act.

Aside from its announced updates to the conciliation and mediation, the EEOC is issuing an update to its wellness program regulations under the ADA and GINA. A proposed rule on the subject, announced Jan. 7, would allow employers to offer no more than a "de minimis" incentive to encourage participation in certain types of wellness programs.