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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
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finding and demands, the respondent will be able to more effectively assess its potential liability. This increased information will enhance the conciliation process for all parties to conciliation and may focus discussions in a way more likely to achieve a meeting of the minds or, alternatively, clearly distill areas of disagreement that may aid the Commission in subsequent litigation.
The Commission recognizes that currently, certain information is generally provided to employers prior to a cause finding and in the Letter of Determination, all of which occur prior to conciliation. The Commission also recognizes that the respondent is generally the holder of its own records and information. This rule is not meant to replace those disclosures or duplicate them,2 but instead to ensure that the information the Commission provides about its position and findings enables respondents to properly evaluate their potential liability and the Commissions settlement offer, and ultimately, result in respondents becoming more likely to participate and resolve the charge.
The comment period for the NPRM
closed on November 9, 2020. The Commission received a total of 58
comments in response to the NPRM15
in favor, 33 in opposition, and 10 nonresponsive. Commenters on both sides of the proposal included organizations and individuals. The Commission also received a comment from members of Congress in support of the rule. Former officials and employees of the Commission also submitted comments against the proposed changes. At least one commenter submitted two comments.
As explained in greater detail below, the Commission has carefully considered each of the comments it received. Based on these submissions, the Commission is publishing this final rule that, while similar to the proposed rule in most respects, nevertheless contains certain modifications, which are explained below.
Comments in Support of Proposal and the Commissions Responses Several commenters agreed that there are challenges in the Commissions conciliation practices and procedures as recounted in the proposed rule.
Specifically, they echoed and illustrated the ways in which the Commissions procedures and practices complicated and prevented the communication 2 In many instances, these previous disclosures will satisfy the Commissions disclosure requirements under the final rule because the rule only requires disclosure of the information if the Commission has not already done so.

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necessary to conciliate charges and stop employment practices that the Commission has determined after an investigation to be discriminatory.
Commenters highlighted illustrative examples of conciliations in which the commenters allege the Commission issued large demands, with minimal explanation and insufficient support for the Commissions position. The commenters noted that in these and similar circumstances, the Commissions communications did not describe the act or practice alleged to be discriminatory, why it violated federal law, and which person or class was unlawfully harmed. 42 U.S.C. 2000e 5b; Mach Mining, 575 U.S. at 488. The Commission agrees that without this basic information, the respondent may not be able to evaluate the merit of the Commissions position or demand, weigh the demand against the risk and expense of possible litigation and take directed action to ameliorate the problem. Even more important, a demand without commensurate support does not inform the employer about the specific allegations in a way that endeavors to achieve voluntary compliance. Mach Mining, 575 U.S. at 488, 494. Indeed, it is axiomatic that a party cannot adequately evaluate a claim or related demand without understanding the factual and legal basis for it. A lack of information can also impact the employers ability to evaluate its practices or provide potentially helpful information to the Commission that may facilitate conciliation or, at a minimum, inform the Commissions subsequent litigation assessment. In the commenters view, this short-circuits the conciliation process before meaningful communication between the parties even commences. Without this information, a respondent cannot engage in this analysis and determine whether the offer presented by the EEOC is the best way to resolve the case under the circumstances.
Commenters emphasized the importance of a thorough understanding of the opposing partys position during discussions aimed at reaching a resolution prior to litigation. As one commenter put it, the lack of factual and legal support for a demand or response leaves both the Commission and the employer with an asymmetrical view of their own position and a lack of understanding of the other sides position. One law firm asserted that the ubiquity of the EEOCs no facts strategy during conciliation indicates it is deeply engrained in the agencys culture. In the commenters experience,
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the dearth of factual and legal support for demands frequently implies weaknesses in the underlying reasonable cause determinations. As another law firm put it: when the conciliation process becomes simply a series of demands, unsupported by relevant facts or legal authority, it is at best a futile and resource-consuming exercise, and at worst, an attempt to bring the weight of the federal government to bear on and extort an employer with little proof of wrongdoing.
Members of Congress who submitted comments highlighted that on several occasions they had identified issues with the Commissions conciliation process; these issues were distinct from the examples provided by law firm and industry commenters.
The commenters in favor of the proposed rule agreed that the Commissions proposal addresses the principal challenges in its conciliation procedures and processes in ways that are likely to result in more meaningful conciliations and, ultimately, more agreements. Specifically, commenters stated that the proposed changes would entice more respondents to participate in conciliation. Commenters also noted that establishing these requirements through regulations, as opposed to through sub-regulatory guidance or employee training, would bring more certainty to the conciliation process. As articulated by the Ranking Member of the House Committee on Education and Labor, these commonsense requirements will increase transparency in the conciliation process and facilitate quicker resolutions of charges as the employer will have more information about the underlying charge, EEOCs position, and the employers legal obligations.
Commission Response: The Commission recognizes the importance of an effective conciliation program in its mission to identify and eradicate discriminatory employment actions and practices and, in so doing, obtain relief for its victims without the delay, expense, and uncertainty of possible litigation. The Commission also appreciates the place of primacy that conciliation holds in Title VIIs statutory framework. By providing information concerning the factual and legal bases for its position for charges where it has found reasonable cause, the Commission believes it places itself in a stronger position to achieve conciliation in more caseseliminating a greater number of unlawful employment practices and obtaining relief for victims of discrimination
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