April 02, 2021

A recently enacted U.S. Equal Employment Opportunity Commission rule aiming to resolve more workplace bias claims outside of court has made big changes to the long-standing way the agency handles conciliation.

The rule, which was greenlit by the agency's three Republican commissioners in a party-line vote in January and went into effect a month later, sets baseline requirements for information the EEOC has to share with employers that choose to go into conciliation.

Conciliation is an informal and confidential process in which the EEOC tries to secure voluntary compliance from employers credibly accused of workplace discrimination before suing them. The agency is required under federal law to try to conciliate cases against employers before it takes them to court.

For management-side attorneys, the recent update represents a welcome change.

. . .

Democrats in Congress have moved to roll the changes back, so what the future holds for the regulations is anybody's guess. But for now, here are four changes employers should know about.

EEOC Must Identify Any Class

While experts disagree on whether this is a beneficial change or a setback for the agency, the rule would require the EEOC to pony up specific details on any potential class allegations and expectations for the ultimate size of the class at the conciliation stage.

Under the conciliation update, the commission must identify the aggrieved individuals or known groups of aggrieved individuals, disclose the potential class size and, if they think it's going to get bigger, give an estimate of the additional class members that will join in later.

Businesses previously weren't entitled to this kind of assessment until litigation.

University of South Carolina School of Law professor Joseph Seiner, who served more than five years with the EEOC as an appellate attorney under President George W. Bush, said this change stands out to him, because these are going to be the biggest lawsuits.

"Those are the types of claims that are going to be particularly expensive, and you're not going to know going in the potential liability in a case like that," Seiner said. "This will give a little more clarity by having to provide the basic parameters of what the pool is going to look like of those applicants."

. . .

Christine Webber, a worker-side partner in the Civil Rights & Employment practice group at Cohen Milstein Sellers & Toll PLLC, argued that this could offer employers a weapon in litigation down the line, depending on how helpful they were in the process early on.

In situations where the agency wasn't able to get an accused employer to hand over enough information about the extent of the problem, that business could potentially use this to shear down the class size once they get to court, she said.

"If an employer doesn't do a completely thorough bit of research in turning over records to the EEOC in the outset, then at the end of the process, they could use their own less-than-thorough recordkeeping as a way to preclude the EEOC from providing relief to additional individuals," she said.

"If the employer fails to turn over the information to begin with, the employer should not then be able to benefit and say, 'see now, you didn't disclose these people so I'm going to limit the class size,'" she added.

The complete article can be viewed here.