The Equal Employment Opportunity Commission (EEOC) investigates charges of unlawful discrimination and conducts an investigation into the allegations and the employer’s response. After assessing the evidence, the EEOC sometimes issues a Letter of Determination that there is reasonable cause to believe that a company discriminated against the charging party (employee) in violation of Title VII. In the Letter of Determination, the EEOC will attempt to resolve the case through a written conciliation agreement. The Conciliation Agreement is a settlement of the case and contains a list of required actions that the employer must take to eliminate the alleged unlawful practices. An employer is typically given seven (7) days to inform the EEOC if it wishes to participate in conciliation. We examined a recently proposed Conciliation Agreement and here are the EEOC requirements.
Can an employer decline conciliation? Yes, if the employer declines conciliation or the EEOC investigator is unable to secure a settlement acceptable to the Commission, the EEOC will advise the complaining party and employer about the court enforcement alternative and will issue a “Right to Sue” letter to the employee.
Here are the EEOC requirements from the Conciliation Agreement:
- Five year agreement.
- Dollar amount for settlement.
- Retain a subject matter expert to conduct yearly training to employees about Title VII (live and in person) – for 5 years
- Retain subject matter expert to conduct yearly training to management and HR employees (live and in person) – for 5 years. Specific recommendations for training content.
- Implement an Anti-Discrimination policy that contains specific content including language about: (1) clear complaint process, (2) identifies individuals to receive complaints, (3) prompt, impartial investigations, (4) examples of prohibited conduct, (5) no tolerance for prohibited conduct, (6) protection from retaliation, (7) confidentiality protection, (8) appropriate disciplinary action for violations, (9) managers required to escalate complaints of harassment, and (10) retaliation that is substantiated will result in discipline.
- Adopt a policy to hold supervisors accountable for compliance with EEOC policies and procedures.
- Maintain recordkeeping procedure for tracking discrimination, harassment and retaliation complaints.
- Submit an annual report to the EEOC regarding various actions under the Conciliation Agreement, including information about complaints, investigations and company responses.
- Display the EEOC poster in a location accessible to employees and applicants.
in 2021, there were only 111 successful conciliation agreements (0.5% of cases), down from 377 (1% of cases). The Trump Administration had proposed new conciliation regulations in 2021, designed to make conciliation more transparent and require the EEOC to disclose facts known to the EEOC. Before it took effect, President Biden signed a joint resolution eliminating the new rules and declared that the “onerous and rigid new procedures,” would increase the risk of retaliation against workers who file complaints or participate in discrimination investigation.