Revised EEOC conciliation process a win for employers

Last month, the Equal Employment Opportunity Commission (EEOC) published a new rule affecting its own processes for dealing with employers under investigation. The conciliation process, which is statutorily mandated, occurs after the agency has determined reasonable cause exists to believe the employer has violated an employment statute and is the means by which it attempts to resolve its perceived issues with the employer’s practices. The new rule, which went into effect on February 16, mandates a significant increase in transparency and is a boon for any employer attempting to resolve an EEOC investigation without litigation.

What is the conciliation process?

The normal course of an EEOC investigation begins with a discrimination charge, generally filed by an aggrieved employee. That is followed by an agency investigation into the alleged illegal practices, which may include witness interviews and document requests. When the EEOC has concluded its investigation, it will issue a determination which either finds (1) reasonable cause to believe the employer has engaged in illegal employment activities or (2) no reasonable cause.

In the latter case, if there’s an individual who filed the charge, the EEOC will also issue a notice of right to sue, and the aggrieved employee’s 90-day window to file a lawsuit commences shortly thereafter. If it finds a reasonable cause, however, it’s required to engage in conciliation efforts before filing its own lawsuit against the employer.