VIA Electronic Submission

Bernadette B. Wilson
Executive Officer, Executive Secretariat
U.S. Equal Employment Opportunity Commission
131 M Street NE
Washington, DC 20507

Re:      Comment on Proposed Rule: Update of Commission’s Conciliation Procedures, 85 Fed. Reg. 64,079, RIN 3046–AB19

To Whom It May Concern:

The National Employment Lawyers Association (“NELA”) respectfully submits the following comments in response to the Equal Employment Opportunity Commission’s (“EEOC”) Notice of Proposed Rulemaking, Update of Commission’s Conciliation Procedures (the “NPRM”).

NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have been illegally treated in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments on relevant NPRMs of Proposed Rulemaking (NPRMs). A substantial number of NELA members’ clients are charging parties at the EEOC or processed their charges through EEOC, with or without counsel. Thus, NELA has an interest in the proposed new regulations 29 C.F.R. §§ 1601.24 and 1626.12 (the “Proposed Rule”).

NELA opposes the Proposed Rule for the following reasons:

1. The Proposed Rule undermines the provision that EEOC employ substantial flexibility in conciliation as set forth in Title VII’s conciliation provision and contradicts the Supreme Court’s interpretation of that provision.

Under section 706 of Title VII of the Civil Rights Act of 1964, as amended,[1] Congress required that after the Commission finds reasonable cause for any charge, “the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(a). The Commission may only commence a civil action against an employer if “the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.” Id. at § 2000e-5(f)(1).

In a series of cases filed by the EEOC beginning in the 1970’s, employers asserted a “failure to conciliate” defense, moved to dismiss or stay the case, and sought attorney’s fee awards. NPRM at n.4.[2]  Several of these cases resulted in substantial fee awards against EEOC. Such fee awards are paid at the expense of taxpayers. See 42 U.S.C. § 2000e-5(k).[3]  All of these cases diverted the resources of the EEOC and the courts from correcting discrimination, which is the mission of the agency and the sole purpose of its litigation program.

The Supreme Court has recently reaffirmed the EEOC’s need for flexibility in conciliation, thus undermining the series of “failure to conciliate” defenses that employers were using to avoid the merits of the discrimination findings made against them.  In Mach Mining LLC v. Equal Employment Opportunity Commission, a unanimous Court substantially ended this diversion of resources just by applying the plain language of Title VII. 575 U.S. 480 (2015). The Court held that Congress directed that EEOC use a flexible, case-by-case approach to conciliation. Id.

The Court recognized that the conciliation process is “not … an end in itself, but only … a tool to redress workplace discrimination.” Id. at 491. Congress chose to describe this tool with statutory language that “smacks of flexibility,” id., requiring only that EEOC must (1) “inform the employer about the specific allegation,” and (2) “try to engage the employer in some form of discussion (whether written or oral), so as to give the employer an opportunity to remedy the allegedly unlawful practice.” Id. at 494. Beyond these two requirements, “Congress left to the EEOC such strategic decisions as whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employer’s counter-offers, however far afield,” and “Congress granted the EEOC discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief.” Id. at 492. The Court further held that judicial review of those requirements (and of nothing else) ensures that the Commission complies with the statute. Since the Mach Mining decision, lower courts have repeatedly relied on it to dismiss failure to conciliate defenses and to deny fee awards.[4]

2. EEOC has instituted, but has not completed, studies of its conciliation process that could provide data that is not currently available to inform this rulemaking process.

Since Mach Mining, EEOC has made efforts to study and improve its conciliation program.

In March 2019, in the FY 2020 Congressional Budget Justification, EEOC stated that beginning in FY 2019, it would undertake a “Conciliation Project,” working with a cross-section of agency staff with expertise in a number of areas “to provide the agency with valuable information about one of its most important statutory functions: the conciliation of charges of discrimination where cause has been found.”[5] EEOC further stated that the project was “expected to conduct an extensive review of the conciliation process and provide some comparative results.”[6] In its FY 2021 Congressional Budget Justification, submitted to Congress in February 2020, EEOC represented that the Conciliation Project was ongoing and reiterated that it was “expected to conduct an extensive review of the conciliation process and provide some comparative results.”[7]

The next year, in July 2020, EEOC issued a press release announcing that, on May 29, 2020, it had instituted a “conciliation pilot” that was “part of our broader effort to emphasize the importance of conciliation as a tool for remedying complaints of discrimination.”[8] Describing the initiative as a “six-month pilot program,” the press release stated that it “adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents,” and that it sought “to drive greater internal accountability and improve the EEOC’s implementation of existing practices.” Id. The press release did not provide any further details about the pilot, and did not explain how – or if – it related in any way to the ongoing Conciliation Project that EEOC had previously described to Congress.

Although EEOC told Congress that it expected the Conciliation Project to provide “valuable information” about the conciliation process, including “comparative results,” the NPRM does not report any results of the supposedly ongoing project, or even mention it. Similarly, although EEOC represented that it instituted a six-month “conciliation pilot” on May 29, 2020, the NPRM does not mention this six-month pilot. Instead of awaiting the results of these studies and using them to inform proposed changes, EEOC abandoned its usual thoughtful process and is rushing implementation of substantial changes to its conciliation process. Of great concern is the fact that these changes will impede, rather than advance, Congress’ goal of eliminating unlawful discrimination in the workplace.

3. The Proposed Rule undermines EEOC’s statutory mission, which is to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.

In creating the EEOC when it enacted Title VII, Congress declared that the purpose of the agency was to “prevent any person from engaging in any unlawful employment practice” prohibited by the statute. 42 U.S.C. § 2000e-5(a). The Proposed Rule would undermine the EEOC’s mission by replacing flexibility in conciliation with a one-size-fits-all straitjacket and rewarding employers named in cause findings.

The Proposed Rule requires EEOC to compile extensive information and disclose it to any employer involved in the conciliation process. That information includes: “a written summary of the known facts and non-privileged information that the Commission relied on in its reasonable cause finding”; identification of “known aggrieved individuals or known groups of aggrieved individuals for whom relief is being sought” and of “the criteria that will be used to identify victims from the pool of potential class members”; “a summary of the Commission’s legal basis for finding reasonable cause, including an explanation as to how the law was applied to the facts”; any “material information[9]  … that caused the Commission to doubt that there was reasonable cause” and its explanation as to “how it was able to determine there was reasonable cause despite this information”; its “basis for monetary or other relief,” including its underlying calculations; and its designation, if any, of the case as “systemic, class, or pattern or practice as well as the basis for the designation.” Proposed 29 C.F.R. § 1601.24(d)(1)-(4) (Title VII/ADA/GINA regulation); Proposed 29 C.F.R. § 1626.12(b)(1)-(4) (ADEA regulation).

The Proposed Rule will create a strong disincentive for EEOC investigators to find cause and a significant slowdown in an already slow, over-stressed agency. Even without this additional burden, the EEOC already takes years, not months, to investigate the biggest, most systemic and pervasive discrimination cases in this country. Such delays are detrimental, and not merely inconvenient, in resolving cases of discrimination.

The disincentive for EEOC investigators to find “cause” is obvious. On its face, this Proposed Rule converts a “flexible” process into a factually and legally detailed and demanding process that mandates a significant amount of additional information to be provided to employers. These requirements create obvious incentives for employers’ attorneys to argue that the requirements have not been met in order to manufacture technical, not substantive, defenses to the EEOC’s findings and subsequent litigation. Court cases will devolve away from litigation of whether discrimination happened and towards disputes over whether all of the requirements of the Proposed Rule were followed. And investigators’ work will shrink away from finding evidence of discrimination across their large caseload and into trying to buttress any remaining cause findings against a barrage of creative arguments from defense attorneys. The sole purpose of such arguments will be to delay and detract from resolution of legitimate claims.

The flexibility recognized in Mach Mining advanced the goals of reducing discrimination several ways:  settling the cases that can be settled, expediting the end of conciliations of cases that cannot be settled at that stage, and ending peripheral litigation about the conciliation itself. The Proposed Rule serves none of those purposes and resurrects the impediments the Court sought to eliminate in Mach Mining.

Already, the “cause cases” take much more time to investigate, which could be part of the reason why EEOC finds cause on less than 4% of all charges. If that rate decreased to 2% due to increased investigator workload, without increasing resolutions or decreasing discrimination, it would merely reflect that an over-burdened agency is being asked to do much more with dwindling resources. It defies all logic to believe that imposition of greater demands on investigators without a significant increase in the total number of EEOC investigators to shoulder this additional burden won’t result in fewer cause findings. This approach defies the ruling in Mach Mining and is outright unfair to charging parties who rely on the EEOC to investigate their cases.

Making this process more difficult, slower and less effective does not equate to increasing the number of cases resolved through conciliation by addressing discrimination. In fact, the result would be just the opposite.

The Supreme Court has long recognized that Congress intended the Title VII charge-filing process to be useful for unrepresented workers, holding that “technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process,” Love v. Pullman Co., 404 U.S. 522, 527 (1972), and that “Title VII … is a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.” EEOC v. Commercial Office Products Co., 486 U.S. 107, 124 (1988). See also Edelman v. Lynchburg College, 535 U.S. 106, 107 (quoting Love and Commercial Office Products). And as the Court stated in Holowecki v. Federal Express Corp., 552 U.S. 389, 403 (2008), Title VII and the ADEA establish a system that “must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes.” As lawyers who represent employees, we know that employers are almost always represented by counsel during the EEOC charge filing process while many charging parties are unrepresented.

The Proposed Rule would be particularly harmful to the unrepresented charging parties and other victims of discrimination whose rights EEOC is supposed to protect. The agency would be required to prepare detailed mandatory disclosures to employers in even the smallest individual case, further burdening EEOC’s already overworked staff, and increasing delays in EEOC’s already backlogged system. The harm of delay is exclusively borne by charging parties seeking relief. As practitioners, we know that delay is the most frequent reason that our clients, many of whom have lost jobs, are financially strained and disserved by the EEOC process.

These additional requirements create no benefits to victims of discrimination. In fact, the requirements of the Proposed Rule inure only to the benefit of the employer as it would require EEOC to compile and disclose extensive information to employers to assist them in the conciliation process, while requiring disclosure of this same information to charging parties only “upon request.” Proposed 29 C.F.R. §§ 16.01.24(f) and 1626.12(d). Unrepresented individuals in the conciliation process are very unlikely to be aware of this provision, buried as it would be at the end of obscure sections in Title 29 of the Code of Federal Regulations. At a minimum, to level the playing field, the Proposed Rule should require EEOC to disclose the same information to the charging party at the same time that it discloses to the employer, even if the charging party does not know enough to request it.

In the unlikely event the charging parties did somehow know they could make the required request and obtain this information, charging parties – who are often navigating EEOC’s process without the assistance of counsel – could not reasonably be expected to know how to effectively dispute management lawyers’ arguments regarding the detailed facts and legal analyses that would be compiled by EEOC for the benefit of employers.

The Proposed Rule would put unrepresented charging parties at an even greater disadvantage than they already are. Instead of serving the congressional goal of “bring[ing] employment discrimination to an end,” Mach Mining, 575 U.S. at 486, the Proposed Rule would tilt the scales even further against charging parties and make it even more difficult for individuals challenging such discrimination to obtain relief.

As discussed above, the Proposed Rule would require EEOC to compile and disclose extensive factual information and legal analyses to any employer involved in the conciliation process. Thus, rather than carrying out its congressionally mandated assignment to “prevent any person from engaging in any unlawful employment practice,” EEOC would become, in effect, a free investigator for and legal advisor to employers that likely have discriminated. Congress clearly did not intend this, for it stated “[n]othing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.” 42 U.S. C. § 2000e-5(b). Employers against whom EEOC finds reasonable cause are the most likely to have discriminated, because the agency, after investigation, has issued findings of reasonable cause to believe they have violated the law, which only happens in 3 to 4 percent of all charges. The rule would require EEOC to comb through its investigative files, compile reports on the evidence it has uncovered, and provide these employers, but not other employers, with that evidence and with a legal analysis of how it applied the law to the facts in determining reasonable cause.

These are functions that up to now have been performed by employers themselves (and by their lawyers) for their use in resisting charging parties’ claims during the conciliation process and in defending against those claims in subsequent litigation. EEOC has offered no reason why these functions should be shifted from employers to the government. To the contrary, the Proposed Rule would stack the deck even further against the already overmatched victims of discrimination,[10] who would not even be given the information and analysis automatically provided to employers unless they know that they need to specifically request it, know how to do so and have the time to do so. Instead of contributing to the prevention and remediation of unlawful discrimination, the Proposed Rule would provide one-sided, federally funded legal aid to employers attempting to limit their liability or to defeat the charging parties’ claims altogether.

There is also a strong likelihood that these mandatory disclosures will cause employers to agree to conciliation to obtain free, early discovery, but without a sincere interest in resolving the cases at that point. The same situation occurs in the early mediation program, but at least that program requires employers and their lawyers to attend a meeting with an EEOC-assigned neutral mediator to discuss the case.[11] An increase in employers “participating” in conciliation to get free discovery would spread EEOC’s limited resources available for investigation and conciliation even thinner.

In addition to the harm this rule would cause to charging parties at the conciliation stage, providing such federally funded legal aid to employers would sabotage the ability of both the EEOC and charging parties to litigate cases if conciliation fails. In cases in which EEOC has found reasonable cause and has been unable to secure an acceptable conciliation agreement, the agency has the authority to bring a civil action against the employer to enforce Title VII. And charging parties have the right to obtain a right-to-sue Notice and file their own lawsuits. See 42 U.S.C. § 2000e-5(f)(1). At the investigative stage, EEOC gathers evidence and information not only for the purpose of making reasonable cause determinations and attempting conciliation, but also for the purpose of building a case for potential litigation.[12] Turning over to every employer in conciliation all the investigative and analytical material specified in the Proposed Rule, including that developed in consultation with EEOC attorneys, would severely disadvantage the EEOC itself as well as charging parties who file their own cases. The damage to EEOC’s ability to litigate cases would be particularly acute, because sharing all of the required information with potential defendants may well waive, in whole or in part, a number of privileges on which EEOC typically relies, including the following:

• The Deliberative Process Privilege. This privilege protects “’documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” of the Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 150 (1975)). “The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance ‘the quality of agency decisions,’ [Sears], at 151, by protecting open and frank discussion among those who make them within the Government ….” Klamath Water Users, 532 U.S. at 8-9 (citations omitted).EEOC frequently invokes the deliberative process privilege, as reflected in its Regional Attorneys’ Manual, which provides detailed guidance on the agency’s procedures for asserting and defending the privilege. See U.S. Equal Emp’t Opportunity Comm’n, Regional Attorneys’ Manual (Apr. 2005), at Part 3.II(A), available at https://www.eeoc.gov/regional-attorneys-manual (“EEOC Regional Attorneys’ Manual”). The privilege “protects certain predecisional, internal agency information, such as recommendations and analysis, from disclosure during litigation,” id. at Part 3.II(A)(1) (emphasis added), and EEOC “typically asserts the deliberative process privilege in litigation in order to protect the confidentiality of internal, deliberative material, such as documents containing the analyses, opinions, or recommendations of enforcement unit staff, and attorney memoranda containing analysis or recommendations.” Id. at Part 3.II(A)(2) (emphasis added). The Manual recognizes that “disclosure by [EEOC] staff to individuals outside the agency could constitute a waiver” of this and other privileges, id. at Part 3.VI(D)(3), and sets forth detailed guidance as to how to prevent such waivers. Id. at Part 3.VI(D)(4).The disclosures mandated by the Proposed Rule include, for instance, a requirement to disclose to the employer any “material information” obtained during the investigation “that caused the Commission to doubt that there was reasonable cause to believe discrimination occurred,” and to “explain” to the employer “how it was able to determine there was reasonable cause despite this information.” Proposed 29 C.F.R. § 1601.24(d)(2). The Proposed Rule would also require EEOC to summarize for employers “the legal basis for finding reasonable cause” and to explain to employers “how the law was applied to the facts,” § 1601.24(d)(2); to provide employers with “the basis for monetary or other relief,” including the agency’s “underlying calculations,” § 1601.24(d)(3); and to explain to employers its “basis” for any designation of a case as “systemic, class, or pattern or practice.” § 1601.24(d)(4). All of these disclosures would almost certainly waive EEOC’s deliberative process privilege and may prevent it from successfully asserting and defending that privilege in subsequent litigation.
• The Attorney-Client Privilege. EEOC’s Regional Attorneys’ Manual states that “[c]ommunications made between EEOC legal staff and individuals for whom EEOC is seeking relief in litigation are protected by the attorney-client privilege,” as are “certain communications made between EEOC employees.” Part 3.VI(D)(3) (footnote omitted). Courts have confirmed that communications between EEOC attorneys and individuals seeking relief, as well as among EEOC attorneys themselves, are protected by either an actual or de facto attorney-client privilege. See In re EEOC, 207 Fed. Appx. 426 (5th Cir. 2006); EEOC v. Chemtech Int’l Corp., 1995 WL 608333 (S.D. Tex. May 17, 1995); Bauman v. Jacobs Suchard, Inc., 136 F.R.D. 460, 461-62 (N.D. Ill. 1990). Such communications, when undertaken by nonlawyer EEOC staff at the behest or under the supervision of EEOC attorneys, clearly implicate the attorney-client privilege. See supra EEOC Regional Attorneys’ Manual, Part 3.VI(D)(2). The disclosures to employers required by the Proposed Rule could waive the attorney-client privilege, see , Part 3.VI(D)(3), and may prevent EEOC or private plaintiffs from successfully asserting and defending the privilege in subsequent litigation.
• The Work Product Doctrine. EEOC’s Regional Attorneys’ Manual states that “[t]he work product doctrine protects from disclosure most communications and documents generated by Commission attorneys in anticipation of or during litigation.” Part 3.VI(D)(3) (emphasis added). The work product doctrine – articulated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947), and codified in the Federal Rules of Civil Procedure – is separate from and broader than the attorney-client privilege. It protects from disclosure materials prepared by an attorney, or others working under the attorney’s supervision, that would reveal the attorney’s mental impressions, conclusions, opinions, or legal theories, unless the party seeking disclosure can show a substantial need for the materials and an inability, without undue hardship, to obtain the substantial equivalent by other means. Rule 26(b)(3), Fed. R. Civ. P. As noted above, EEOC investigations are always conducted, in part, in anticipation of potential litigation. Indeed, the EEOC encourages its attorneys and investigators to work in consultation with each other during the investigative stage of appropriate cases. SeeS. Equal Emp’t Opportunity Comm’n, Quality Practices for Effective Investigations and Conciliations (Sept. 30, 2015), available at https://www.eeoc.gov/quality-practices-effective-investigations-and-conciliations. Where EEOC attorneys and investigators have done so, the work product doctrine protects the resulting documents and other materials from disclosure. Cf. EEOC v. Scrub, Inc., No. 09 CV 4228, 2010 WL 2136807, at *9 (N.D. Ill. May 25, 2010). The disclosures to employers required by the Proposed Rule could waive the protection of the work product doctrine, see supra EEOC Regional Attorneys’ Manual, Part 3.VI(D)(3), and could prevent EEOC from successfully asserting and defending that protection in subsequent litigation.

In addition to undermining or destroying EEOC’s ability to assert and defend the foregoing privileges in litigation, the Proposed Rule would call into question its attorneys’ adherence to applicable ethical standards. EEOC’s attorneys, like all others, are subject to standards set forth in rules of professional responsibility. As the agency’s Regional Attorneys’ Manual states, these standards are “relevant … to the obligations of legal unit staff to ensure the confidentiality of information obtained from or relating to individuals and entities involved in any way in an EEOC investigation.” Part 3.VI(2)(D)(2) at n.2. Those obligations include maintaining the confidentiality of information relating to the representation of a client and safeguarding such information from improper disclosure by others, including nonlawyers, under their supervision: “’A lawyer must take reasonable steps so that law-office personnel and other agents such as independent investigators properly handle confidential client information. That includes devising and enforcing appropriate policies and practices concerning confidentiality and supervising such personnel in performing those duties.’” Id. (quoting Restatement (Third) of The Law Governing Lawyers, § 60, Comment d (2000)). The extensive disclosures of confidential information required by EEOC’s Proposed Rule would not just sabotage its attorneys’ efforts to enforce the anti-discrimination laws and invoke appropriate privileges in litigation; it may put those attorneys at risk of violating their ethical obligations and potentially being subjected to professional discipline.

Discrimination investigations frequently require supportive testimony from third-party witnesses – often current employees – who have no personal incentive to cooperate with the EEOC. In fact, those third-party witnesses may risk their careers in order to do so. As lawyers for employees, we know that cases are much stronger when our clients’ testimony is corroborated, but often our biggest challenge is to persuade coworkers to take personal risk, for no personal gain, to provide this corroboration. Their only protection is the EEOC’s assurance that it will not disclose their identity to their employer and thus subject them to retaliation. There is more than anecdotal evidence to support this. Retaliation against employees who complain about discrimination, although illegal, is endemic. In FY2019, 39,110 charges (53.8% of all charges filed) alleged retaliation.

The EEOC Compliance Manual incorporates the public policy of protecting supportive witnesses from harm. Section 83.3 requires that the agency may disclose information to an employer only after the employer has been named as a defendant in a lawsuit and after the EEOC file has been “sanitized.” This “sanitizing” includes removing the names of witnesses who have given confidential statements (Sec. 83.4(f)). And yet, the Proposed Rule requires the EEOC investigator to disclose to the employer at the conciliation stage the information the agency relied upon to find “cause.”  While the Proposed Rule would allow aggrieved individuals to request anonymity, §§ 1601.24(d)(1), 1626.12(b)(1), it does not say that witnesses can request anonymity or that their wishes will be respected. As a result, the Proposed Rule conflicts with the Compliance Manual by requiring disclosure of the identity of supportive witnesses. It is absolutely essential that the final rule requires the EEOC to withhold the names and other identifying information of witnesses during the conciliation process.

The Court has recognized that fear of retaliation is the leading reason that workers who face illegal discrimination, as well as those who witness it, do not come forward.  In Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555 U. S. 271, 279 (2009), Justice Souter opined that “if it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses against themselves or against others. This is no imaginary horrible given the documented indications that ‘[f]ear of retaliation is the leading reason why people stay silent instead of voicing their concerns about bias and discrimination.’”

4. The Benefit of the Proposed Rule is unlikely to be obtained because failure to provide employers with information is not the main reason conciliations fail.

The Proposed Rule imposes substantial burdens on charging parties, witnesses, commission staff, and the taxpayers but creates new advantages for employers. The supposed benefit to the Commission and to charging parties is entirely speculative because the Proposed Rule addresses the wrong problem.

The NPRM does not identify any evidence showing that conciliations now fail because EEOC did not give employers information. In many conciliations, employers already have all the information they need. Courts have repeatedly noted that employers have more information on their employment practices than the parties litigating against them ever do.[13] EEOC has found that employers usually do their own investigations before early mediation.[14]

Rather, the largest single reason that conciliations fail is that in many cases employers do not participate at all. The recent successful conciliation rate is approximately 40%.[15] The rate of employer refusal is 33%.[16]  EEOC counts the refusal cases as “failed conciliations.” EEOC reports that, for each fiscal year, the sum of successful conciliations and failed conciliations is exactly the same as the total number of reasonable cause determinations:

Fiscal Year	Reasonable Cause Findings	Successful Conciliations (S)	Failed Conciliations (F)	S+F
2018	3133	1289	1844	3133
2019	2385	958	1427	2385

In FY 2018 and 2019, conciliation was successful roughly 60% of the time when employers participated. To our knowledge, EEOC has not announced any study of why employers decline to participate in conciliation, but years ago, an EEOC study found that one of the primary reasons that employers decline to participate in mediation is that they know that many of the cases selected for early mediation will not result in a reasonable cause finding.[17] The same reasoning applies to conciliation.  While conciliation failed in a total of 3,271 cases in the last two fiscal years,[18] EEOC has filed only 343 suits on the merits during that period.[19] Employers must know that in nearly 90% of the cases in which conciliation fails, EEOC does not file suit. In the NPRM, EEOC assumes that charging parties file their own cases after 1/3 of all failed conciliations, meaning that approximately 60% of the time a failed conciliation leads to the best outcome for the employer – no settlement to pay and no suit to defend. Employers’ refusal to participate in many conciliations is a reality of the system, not a problem to correct with a largesse of free information and legal analysis.

These two principles – that employers have most of the information they need and strategically choose not to participate — played out in EEOC v. CRST Van Expedited, Inc. The $3,317,289.67 fee award to CRST is the paradigmatic example of the problems the failure to conciliate defense created for EEOC and for workers. EEOC has identified the root cause of that fee award as CRST’s failure to give EEOC information, not the other way around.[20] During EEOC’s investigation, CRST furnished only two names of women who had been sexually harassed, though it was aware of many more.[21] After issuing a reasonable cause finding on a class of female employees subjected to sexual harassment, EEOC initiated conciliation and proposed a process for identifying additional victims. Id. at 5, 10. CRST ended conciliation efforts and did not inform EEOC it knew of at least 105 potential victims. Brief of Plaintiff-Appellant at 17-18, EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012) (No. 09-3765). It was not until discovery in court that EEOC learned CRST recorded sexual harassment complaints from at least 182 women. Id. at 27.  The dissent in CRST noted that the majority’s opinion “in effect rewards CRST for withholding information” from EEOC and permits employers to “avoid disclosure to the EEOC of complaining workers while [EEOC] is conducting its investigation and conciliation, then reveal the names during court-ordered discovery, and seek dismissal of the entire case on the ground of inadequate presuit efforts by the EEOC.” Id. at 695, 697.  Perversely, the Proposed Rule not only does not fix an identified source of this problem, it gives other employers the opportunity to try to obtain the same outcome.

There is absolutely no reason to believe employers need more information to make informed settlement decisions. Employers have available to them most of the relevant information in an employment case.[22] The study conducted by the EEOC found that at the earlier mediation stage, most employers have already conducted their own internal investigations. See supra n.19. At the later stage of conciliation, the percentage of employers that have done their own investigation must be even higher.

The NPRM ignores many of the real burdens of the Proposed Rule such as:

• The time spent by EEOC investigators and other staff preparing detailed disclosures for conciliations.
• The costs of additional conciliations that employers may agree to participate in for the purpose of obtaining pre-litigation discovery.
• Additional fee litigation against EEOC as employers seek to enforce their right to the full disclosures the Proposed Rule will require.
• The loss of benefits to charging parties and other employees because there will be fewer reasonable cause determinations and therefore fewer successful conciliations. The NPRM assumes that 100 additional cases will settle in conciliation each year if employers receive the disclosures the Proposed Rule requires. There is no factual support whatsoever for this assumption. Settlement of 100 additional cases would be a 10% increase in resolved cases, only if the total number of cause findings does not change. But the number of cause findings will likely drop because the increased workload for making these disclosures for each reasonable cause determination will drive the total number of cause findings down.^[23] Fewer reasonable cause findings means fewer cases will settle during conciliation.

***

For all of the reasons stated above, the National Employment Lawyers Association respectfully requests that the Equal Employment Opportunity Commission withdraw the Proposed Rule, and instead implement the flexible conciliation process required by Title VII and approved by the Supreme Court.

Sincerely yours,

Laura M. Flegel
National Employment Lawyers Association
Director of Legislative & Public Policy
lflegel@nelahq.org

 

[1] Although this Comment primarily addresses the Proposed Rule’s changes to EEOC’s conciliation process under Title VII, which also governs the ADA and GINA, it applies equally to the conciliation process under the ADEA.

[2] See, e.g., EEOC v. Asplundh Tree Expert Co., 340 F. 3d 1256, 1260 (11th Cir. 2003); EEOC v. CRST Van Expedited, Inc., 944 F.3d 750 (8th Cir. 2019); EEOC v. CRST Van Expedited, Inc. (CRST II), 744 F.3d 1169 (8th Cir. 2014), vacated and remanded, 578 U.S. __, 136 S. Ct. 1642 (2016); EEOC v. CRST Van Expedited, Inc. (CRST I), 679 F. 3d 657, 676 (8th Cir. 2012); EEOC v. Johnson & Higgins, Inc., 91 F. 3d 1529, 1534 (2d Cir. 1996); EEOC v. Klinger Elec. Corp. 636 F. 2d 104, 107 (5th Cir. 1981); EEOC v. Container Corp. of A., 352 F. Supp. 262 (M.D. Fla. 1972); EEOC v. U.S. Pipe F. Co., 375 F. Supp. 237 (N.D. Ala. 1974); EEOC v. Hickey-Mitchell, 507 F.2d 944 (8th Cir. 1974); EEOC v. Firestone Tire & Rubber Co., 366 F. Supp. 273 (D. Md. 1973); EEOC v. Pierce Packing Co., 669 F.2d 605, 609 (9th Cir. 1982); EEOC v. Agro Distrib., LLC, 555 F.3d 462, 469 (5th Cir. 2009).

[3] See, e.g., EEOC v. Pierce Packing Co., 669 F.2d 605, 608-09 (9th Cir. 1982) (affirming district court’s awards of fees and costs to defendants, where EEOC failed to meet “judicial conditions precedent to suit by the EEOC,” including conciliation); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1260 (11th Cir. 2003) (affirming district court’s dismissal and award of attorney’s fees against the EEOC, where the EEOC failed to engage in good faith conciliation).

[4] EEOC v. Atl. Capes Fisheries, Inc., 284 F. Supp. 3d 133, 134 (D. Mass. 2018); EEOC v. Amsted Rail Co., 169 F. Supp. 3d 877, 886 (S.D. Ill. 2016); EEOC v. Bass Pro Outdoor World, LLC, 826 F.3d 791, 805 (5th Cir. 2016); EEOC v. Dolgencorp, LLC, 249 F. Supp. 3d 890, 896 (N.D. Ill. 2017); EEOC v. PC Iron, Inc., 316 F. Supp. 3d 1221, 1231 (S.D. Cal. 2018); EEOC v. Blinded Veterans Ass’n, 128 F. Supp. 3d 33, 43-46 (D.D.C. 2015); EEOC v. W. Distrib. Co., 218 F. Supp. 3d 1231, 1238-39 (D. Colo. 2016); Ariz. ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189 (9th Cir. 2016); EEOC v. CVS Pharmacy, Inc., 892 F.3d 307, 314 (7th Cir. 2018) (“[I]f the real problem with the EEOC’s case was a failure to conciliate, it is questionable whether a fee award is appropriate after Mach Mining.”).

[5] U.S. Equal Emp’t Opportunity Comm’n, Fiscal Year 2020 Congressional Budget Justification, at App’x B(2) (Mar. 2019), available at https://www.eeoc.gov/fiscal-year-2020-congressional-budget-justification-us-equal-employment-opportunity-commission.

[6] See supra n.5.

[7] U.S. Equal Emp’t Opportunity Comm’n, Fiscal Year 2021 Congressional Budget Justification, at App’x B(2) (Feb. 2020), available at https://www.eeoc.gov/fiscal-year-2021-congressional-budget-justification.

[8] U.S. Equal Emp’t Opportunity Comm’n, EEOC Announces Pilot Programs to Increase Voluntary Resolutions (July 7, 2020), https://www.eeoc.gov/newsroom/eeoc-announces-pilot-programs-increase-voluntary-resolutions.

[9] The Supplementary Information section of the NPRM, but not the proposed regulations themselves, refers to this part of the disclosure as “non-privileged information” rather than “material information.” At a minimum, the words “non-privileged” should be added to proposed 29 C.F.R. §§ 1601.24(d)(2), 1626.12(b)(2) to reduce the chances that the investigators, who are not lawyers, will disclose privileged information during conciliation.

[10] See, e.g., Amy Myrick, Robert L. Nelson & Laura Beth Nielson, Race and Representation: Racial Disparities in Legal Representation for Employment Civil Rights Plaintiffs, 15 N.Y.U. J. Legis. & Pub. Pol’y 705, 719 (2012); Laura Beth Nielsen, Robert L. Nelson & Ryon Lancaster, Uncertain Justice: Litigating Claims of Employment Discrimination in the United States, Am. Bar Found. Res. Paper No. 08-04 (2008) (stating that, in 14% of EEOC charges, the complainant receives some kind of favorable outcome).

[11] See, e.g., Peter Petesch & Joshua Javits, Mediation’s On—Grab a Spoon, HR Mag. 163, 165-66 (Apr. 2000) (stating EEOC mediation can benefit employers by providing “an opportunity to obtain ‘free discovery.’”).

[12] See U.S. Equal Emp’t Opportunity Comm’n, Quality Practices for Effective Investigations and Conciliations (Sept. 30, 2015), available at https://www.eeoc.gov/quality-practices-effective-investigations-and-conciliations (“EEOC’s analyses and conclusions are supported by the evidence obtained and contained in the investigative file, reflect a reasonable application of the law and current Commission policy, and are informed by consultation with its legal personnel, as warranted.”) (emphasis added).

[13] See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989); Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990); Baltodano v. Merck, Sharp Dohme (LA.), 637 F.3d 38, 42 (1st Cir. 2011).

[14] See, infra, n.19.

[15] U.S. Equal Emp’t Opportunity Comm’n, All Statutes (Charges filed with EEOC) FY 1997 – FY 2019, available at https://www.eeoc.gov/statistics/all-statutes-charges-filed-eeoc-fy-1997-fy-2019 (“All Statute Statistics”).

[16] NPRM, 85 F.R. 64080 (Oct. 9, 2020).

[17] E. Patrick McDermott, Anita Jose & Ruth Obar, An Investigation of the Reasons for the Lack of Employer Participation in the EEOC Mediation Program, U.S. Equal Emp. Opp. Comm’n, available at https://www.eeoc.gov/investigation-reasons-lack-employer-participation-eeoc-mediation-program.

[18] U.S. Equal Emp’t Opportunity Comm’n, All Statutes (Charges filed with EEOC) FY 2018 – FY2019, available at https://www.eeoc.gov/statistics/all-statutes-charges-filed-eeoc-fy-1997-fy-2019.

[19] U.S. Equal Emp’t Opportunity Comm’n, EEOC Litigation Statistics, FY 1997 through FY 2019, available at https://www.eeoc.gov/statistics/eeoc-litigation-statistics-fy-1997-through-fy-2019.

[20] 944 F.3d 750 (8th Cir. 2019).

^[21] CRST Van, 679 F.3d at 696 (Murphy, J., dissenting); Petition of Plaintiff-Appellant for Rehearing at 4-5, EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012) (No. 09-3765)

[22] See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074 (in the context of employment discrimination cases, “liberal civil discovery rules give plaintiffs broad access to employers’ records in an effort to document their claims.”); Hollander v. American Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990) (“Evidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer’s offered explanation for an employment decision regarding a particular individual masks a discriminatory motive.”); Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (“It is well settled that in a Title VII suit, an employer’s general practices are relevant even when a plaintiff is asserting an individual claim for disparate treatment.”); Baltodano v. Merck, Sharp Dohme (LA.), 637 F.3d 38, 42 (1st Cir. 2011) (finding employer’s failure to produce evidence deprived plaintiff of a fair chance to obtain evidence that could rebut employer’s claim of just cause dismissal); EEOC v. Roadway Express Inc.,750 F.2d 40 (6th Cir. 1984) (holding that general employment practices are relevant to EEOC investigation of individual disparate treatment claim); Diaz v. Am. Telephone Telegraph, 752 F.2d 1356, 1364 (9th Cir. 1985) (reversing grant of summary judgment to defendant, where defendant refused to provide plaintiff with “relevant statistical information which might support both the prima facie inference of discrimination and [plaintiff’s] allegation that [defendant’s] articulated reason for failing to promote him was pretextual.”).

[23] The most specifically identified savings in EEOC time – the reduction in FOIA and Section 83 requests – is a very slim justification for all the additional staff time and legal risk the Proposed Rule will require. The work currently done to respond to a FOIA request is not nearly as demanding and time-consuming as the work this regulation would require EEOC staff to do. To respond to a FOIA request, EEOC need only copy or scan the investigative file. Drafting the disclosures required by the rule will be much more demanding, requiring the work of more skilled staff members.