President Signs Resolution Withdrawing EEOC Conciliation Reforms



[Editor's note: This article has been updated.]​

President Joe Biden signed a resolution on June 30 withdrawing reforms to conciliation that the Equal Employment Opportunity Commission (EEOC) had made under the Trump administration. 

On June 24, the U.S. House of Representatives joined the Senate in voting to reverse these reforms. The House passed S.J. Res. 13 by a vote of 219-210. The Society for Human Resource Management (SHRM) had previously sent a letter to congressional leaders expressing strong concerns with the resolution. We've gathered articles on the news from SHRM Online and other trusted sources.

Conciliation Reforms' Purpose

Under the conciliation reforms, the EEOC was to provide employers with "a written summary of the known facts," among other information, when an employee files a discrimination charge. Conciliation is similar to mediation, except that an EEOC investigator, rather than an independent third party, conducts conciliation procedures.

(SHRM Online)

Rule Sought More Transparency and Efficiency

The goal of the conciliation rule was to better inform employers on the findings in conciliated cases and encourage them to resolve disputes voluntarily rather than in court. The commission approved the final rule along party lines, 3-2, with current EEOC chair Charlotte Burrows expressing "strong opposition" to the rule, saying it would "lead to expensive and needless litigation."

But then-EEOC Vice Chair and current EEOC commissioner Keith Sonderling noted that each year, the agency can litigate only a small number of cases that fail conciliation. "Thanks to the final rule, more victims of discrimination will obtain relief faster," he said. The rule would have benefited employers, he said, by providing the information they need "to decide whether it is in their best interest to settle the matter or litigate."

(SHRM Online)

Impetus for Conciliation Reforms

The conciliation reforms were in response to a Supreme Court ruling that held the EEOC is required to do two things during the conciliation process:

• Inform the employer about the specific allegation against it—describing both what the employer has done and which employees, or class of workers, have suffered as a result.
• Attempt to engage the employer in some form of discussion, oral or written, to give the employer the opportunity to remedy the alleged practice.

(McAfee & Taft)

When Conciliation Occurs

Conciliation is voluntary and occurs after the EEOC determines there is reasonable cause to believe discrimination has occurred. Conciliation is similar to mediation, which the EEOC also offers for some charges, though its timing differs. Unlike mediation, conciliation is conducted by an EEOC investigator rather than a neutral party like a mediator.

(SHRM Online)

Objections of Rule's Opponents

The final rule's opponents said it gave some businesses a chance to drag talks out. They also objected to the EEOC providing employers with the name of the worker who accused them of discrimination and any witnesses to the misconduct. Disclosure may dissuade workers and witnesses against coming forward to report discrimination, fearing retaliation, the rule's critics said. 

They opposed the agency having to share what facts it relied upon to find reasonable cause of discrimination; the criteria it will use to identify more victims; and the basis of requested relief, including a detailed calculation of damages. The rule's opponents also criticized the requirement that the EEOC reveal when it had identified systemic discrimination and explain how it came to that conclusion, saying this gave employers an upper hand in settlement talks and later in court.

(Slate)

Burrows Named EEOC Head Earlier This Year

President Joe Biden named Burrows chair of the EEOC earlier this year. Burrows has served as an EEOC commissioner since 2015, having been initially nominated by former President Barack Obama. In 2019, she was renominated and unanimously confirmed for a second term ending in 2023. The EEOC has three Republican commissioners—Sonderling, Janet Dhillon and Andrea Lucas—and two Democratic commissioners—Burrows and Jocelyn Samuels. Samuels is the agency's vice chair.

(SHRM Online)

Remarks at Signing Ceremony

"We're going to move in the direction of greater fairness, accountability and justice," Biden said at a signing ceremony for the joint resolution. The White House issued a statement of support for the legislation in May, saying the resolution would remove "unnecessary and burdensome standards" established by the conciliation reforms.

(Bloomberg)