By Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On July 7, 2020, the EEOC announced in a press release two new six-month pilot programs aimed at increasing voluntary resolutions of discrimination charges. One of the new programs seeks to increase the effectiveness of the conciliation process at the Commission, and the other will create more opportunities to resolve matters through the EEOC’s popular mediation process. The details of the EEOC’s latest programs are a critical “must read” read for all employers dealing with EEOC charges.   

Conciliation Pilot Program

The conciliation process is an informal process at the EEOC that seeks to resolve findings of discrimination by the Commission before litigation. The EEOC’s conciliation pilot program, which reportedly began on May 29, 2020, and was first reported by us here, updates the conciliation process to “drive accountability” and “emphasize the importance of conciliation as a tool for remedying complaints of discrimination.” The Commission’s announcement of the program provides that the pilot reestablishes the commitment for full communication between the EEOC and the parties to a charge of discrimination and, notably, adds a requirement that conciliation offers be approved by the “appropriate level of management” before they are shared with respondents.

This new pilot, which has been underway for several weeks, appears focused on enhancing oversight over the conciliation decisions made by EEOC personnel in the field and materially changes how the agency conciliates discrimination and harassment allegations. However, the pilot has garnered criticism from Senator Patty Murray, Ranking Member of the Senate HELP Committee, and Representative Bobby Scott, Chair of the House Committee on Education and Labor, who wrote to EEOC Chair Janet Dhillon on June 22, 2020, to question the rollout of the program and the moderation of EEOC field personnel discretion in conciliation efforts. (In that letter, the legislators cited our recent blog post on the impact of these changes on employers.)

Mediation “ACT” Pilot Program

The EEOC first implemented an agency-wide mediation program in 1999 and, since its implementation, it has been a popular option for employers to resolve charges of discrimination. However, the mediation program has historically only been available for certain categories of charges at the beginning of the charge process. The EEOC’s new “ACT” Mediation pilot, which stands for “Access, Categories, Time,” now expands the kinds of charges eligible for the mediation process and allows for mediation throughout the entire charge investigation. This program purports to allow parties more opportunities to resolve charges, though the Commission’s announcement does not contain any additional detail on the types of charges that may now be eligible for mediation. For example, large-scale, systemic cases were historically not subject to mediation, but it is unclear if that is still the case.

The EEOC also announced that the pilot will expand the use of technology to hold virtual mediations, presumably to continue this program despite challenges posed by the COVID-19 pandemic.

Implications For Employers

While additional details about these programs have yet to be disclosed, the changes described by the EEOC in its press release are potentially positive developments for employers. The conciliation program requirements that personnel in the field must obtain approval from a higher level of management before making conciliation demands could provide more clarity and assurance on conciliation demands offered to employers, and the mediation program changes may allow for more opportunities for employers to resolve charges throughout the investigation process.

These new measures are the latest in a variety of changes made by EEOC Chair Dhillon and are consistent with the EEOC’s previously-announced strategic priorities to emphasize pre-suit conciliation and mediation. The ongoing changes at the Commission are a must-watch for employers, as they considerably expand the opportunities for pre-litigation resolution of discrimination claims.