Written Testimony of Andrew F. Maunz, Legal Counsel, for August 18, 2020 Commission Meeting

Chair Dhillon and Commissioners Lipnic and Burrows, thank you for the opportunity to participate in today’s meeting.  I am here to discuss the Notice of Proposed Rulemaking that is currently before the Commission that proposes to amend the Commission’s procedural rules on conciliation. 

Conciliation plays a vital role in the Commission’s fulfillment of its mission.  Voluntary resolution through conciliation is recognized as Congress’s preferred means of resolving employment discrimination claims.  As the Supreme Court recognized in 2015 in the Mach Mining case, the Commission has a statutory obligation to attempt to conciliate any charge after the Commission finds reasonable cause to believe that discrimination has occurred.  The Commission also has a legal obligation to have attempted to conciliate a case before it files a lawsuit.  Indeed, as the Supreme Court noted, the Commission’s duty to conciliate comes with concrete standards as to what the effort must include.  According to the Court, at a minimum, the Commission must: 1) tell the employer about the claim, and 2) give the employer an opportunity to discuss the matter to achieve voluntary compliance.  This proposed rule, as I will more fully explain in a moment, will help ensure that the Commission meets its statutory conciliation obligations.

In the past, the Commission has sought maximum flexibility in its conciliation process and avoided adding specifics to it conciliation regulations.  The Commission took this approach because it believed that maintaining maximum flexibility in conciliation would allow it to most effectively resolve cases.  However, statistics show that there is room for improvement in how the Commission approaches conciliation. 

Over the past 8 fiscal years, the Commission has only been able to resolve through conciliation around 40% of the cases in which it finds reasonable cause.   Let’s breakdown exactly what those numbers represent.  This is not 40% of all charges, but rather 40% of those charges for which the Commission finds there is reasonable cause to believe that discrimination has occurred.  So, even in the charges with the most merit, the Commission has only been able to voluntarily resolve these cases less than half the time.  Since the Commission can only pursue litigation itself in a couple hundred cases a year, that means that failing to conciliate these cases leaves thousands of individuals with valid discrimination claims to fend for themselves in order to receive any redress.  Part of the Commission’s lack of success in conciliation is attributable to the fact that an estimated 1/3 of employers who receive a reasonable cause finding decide not to even participate in conciliation.  Such a widespread rejection of the process suggests that many employers do not believe participating in conciliation with the EEOC is worthwhile.

The proposed rule, if adopted by the Commission, will implement important reforms that will put the Commission in a better position to resolve more cases.  The proposed rule amends the conciliation regulations to bring more transparency and consistency to the EEOC’s conciliation process by requiring that the Commission ensure that certain threshold information has been provided to any employer that agrees to participate in conciliation.  The information that the Commission commits to providing in the proposed rule is foundational to any settlement discussion.

 In the proposed rule, the Commission commits in any conciliation:

1. To provide a written summary of the known facts and non-privileged information that the Commission relied on in making its reasonable cause finding.  This will also include identifying the known aggrieved individuals or groups of aggrieved individuals for whom relief is being sought, unless those individuals have requested anonymity.  In addition, the Commission will identify the criteria it will use to determine additional aggrieved individuals, if it anticipates discovering more aggrieved individuals who have not already been identified and who will need relief.
2. To provide a summary of the Commission’s legal basis for finding reasonable cause.  This will include an explanation of how the law was applied to the facts of the case.  In addition, the Commission will explain if there was material information that the Commission obtained during the investigation that caused the Commission to doubt whether reasonable cause existed and how the Commission was still able to determine reasonable cause despite that information.
3. To provide the basis for monetary and other relief the Commission seeks in conciliation, including the calculations underlying the initial conciliation proposal; and
4. To notify the respondent  if the case has been designated systemic, class, or pattern or practice and the basis for the designation. 

In addition to these basic information disclosure requirements, the Commission also commits to provide a respondent at least 14 days to respond to the Commission’s initial conciliation proposal.

These proposed changes will allow employers who participate in conciliation to be better informed about the EEOC’s findings in the case and the Commission’s positions during settlement discussions.  Committing the Commission to greater transparency promotes a free flow of information during the conciliation process and makes it more likely that respondents and the Commission will be able to have a meeting of the minds to resolve the case without litigation.  Resolving more cases through conciliation is beneficial to all parties involved and achieves Congress’s goal of having informal  resolution be the primary way the Commission resolves employment discrimination claims.

Not only will these proposed changes encourage more cases to be resolved through conciliation, but they will also help ensure the Commission meets its statutory conciliation obligations in the most effective manner. 

Ultimately, this proposed rule, if approved, will put the Commission on the path to improving its conciliation process, creating an environment where parties have a better understanding of the Commission’s position, and in the end, resolving more cases through informal means, just as Congress intended.

Thank you for your time and I look forward to your questions.