Imagine the Equal Employment Opportunity Commission (EEOC) ruling against you in a discrimination charge and inviting you to a settlement conference without explaining either why you lost the case or how they arrived at their settlement demand.
Then, envision a settlement meeting where the EEOC announces that they also are negotiating for five other employees whom they say suffered the same type of discrimination, yet they refuse to divulge their names or the details of their claims.
That is how the EEOC has done things for years. Not surprisingly, this process has resulted in what even the EEOC acknowledges to be a disappointingly low percentage of settled cases. In fact, fully one-third of all employers who receive adverse rulings refuse even to participate in such settlement discussions, and EEOC’s overall success rate in settling cases after issuing findings against the employer is just a shade over 25%.
New Proposal
In the hope of drawing more employers into the process, and reduce their reliance on costly litigation, the EEOC has announced a proposed change to their conciliation rules that they believe will “provide greater clarity to the conciliation process [and]….enhance the effectiveness of the process.” This proposal entails providing the employer with the following information:
– A summary of the facts and non-privileged information relied upon to reach the adverse ruling;
– A summary of the legal basis for finding against the employer, including an explanation as to how the law was applied to the pertinent facts;
– The criteria used to identify other employees for whom relief will be sought;
– The basis for any damages or other relief sought for the claimant, including the calculations underlying the initial settlement proposal; and
– Identification of any systemic, class, or pattern or practice designation that might prompt the EEOC to seek class-based relief.
The changes would apply to all charges under the various laws that EEOC administers, including Title VII, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA) and the Genetic Information Nondiscrimination Act (GINA).
Employers would have at least 14 calendar days to review and respond to EEOC’s initial settlement proposal.
Initial Reactions
Interestingly, some employee advocates believe that this proposed change will work to the employer’s advantage by giving them a head start on preparing their defenses to the employee’s claims. They also worry that divulging the names of other employees whom the EEOC believes to have been wronged places those persons in danger of possible retaliation.
Management representatives see things differently, arguing that more information will almost certainly lead to more settlements. After all, if the EEOC can credibly articulate their critique of the employer’s position, while also proposing reasonable settlement terms tied to the specifics of the case, a reasonable employer is likely to give greater consideration to the benefits of a possible settlement. In short, a more fruitful settlement process can be envisioned if the EEOC comes to the table with more than just “take our word for it.”
Bottom Line
The EEOC is proposing to implement this change after a shortened public comment period (30 days instead of the customary 60), in an apparent effort to finalize the new process before a possible change in administration after the election next month.
We will update you if and when his proposal becomes effective.