EEOC proposes sweeping change to conciliation process

After decades of criticism from employers, the Equal Employment Opportunity Commission (EEOC) finally issued a proposed rule changing the core elements of the conciliation process on October 10, 2020.

Usually not much ‘good faith’

From employers' perspective, the current “good-faith” conciliation process has had little good faith, was barely a process, and offered little in the way of conciliation. More often than not, the EEOC would make an unexplained demand, often based on an unclear charge with little opportunity to negotiate—all of which was supposed to constitute the “conciliation.” As a result, few cases were resolved by the approach.

Objections from employers mounted to the point that appellate courts not only found the conciliation process was subject to judicial review but also that they could assess the sufficiency of the EEOC’s “good-faith” conduct.