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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations latitude to pursue voluntary compliance with a statutory provision, every aspect of which smacks of flexibility. Mach Mining, 575 U.S. at 492; 42 U.S.C. 2000e5b. And like the Supreme Court in that case, the Commission declines to infuse the conciliation process with a rigid code of rules that handcuffs the agency by limiting the broad strategic leeway Title VII affords to it to execute its mission.
See Mach Mining, 575 U.S. at 492
rejecting the petitioners proposed code of conduct and bargaining checklist because Congress left to the EEOC such strategic questions about whether to make a bare-minimum offer, to lay all its cards on the table, or to respond to each of an employers counter-offers, however far afield..
The Commission meets its statutory obligation by providing the basic factual and legal information for the respondent to evaluate the claim and identify the discriminatory action or practice. But once this is accomplished, the Commission retains discretion over the pace and duration of conciliation efforts, the plasticity or firmness of its negotiating positions, and the content of its demands for relief. Id. The Commission declines to adopt such proposals because they damage the flexibility critical to its ability to conciliate claims without any concomitant benefit.
5. Disclosures should be made in writing: In the NPRM, the Commission solicited comments on whether the disclosures described in the proposed rule should be made in writing. 85 FR
at 64081. Several commenters advocated written disclosures in order to ensure clarity. Significantly, one commenter contended that written disclosure of all material should be required so that all parties have a complete and unambiguous understanding of the Commissions position. Another commenter explained that written disclosures are more effective than mere oral exchanges in the negotiation process. This commenter noted that if the parties are required to communicate and exchange information in writing, it is less likely that the parties will be unclear as to the other parties positions and information exchanged during the process.
Commission response: The Commission agrees that written disclosures help ensure clarity throughout the conciliation process. The Commission further agrees that providing information in writing will ensure full transparency of the conciliation process. Exchanging information in writing, where appropriate, eliminates confusion and
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promotes more accurate and complete information regarding the relevant issues. For these reasons, the Commission will keep the written reference that was in the NRPM and clarify that the other disclosures be in writing. However, for sections 1601.24d3 and 1626.12b3, the requirement that the disclosure be in writing shall apply only to the initial conciliation proposal made by the EEOC. In order to preserve the Commissions flexibility in conciliation, in recognition of the fact that demands are made at various times in a sequence of offers and counteroffers, and in order to avoid the increased burden on its staff to prepare a written explanation to accompany each change of position, the Commission has determined that disclosures explaining the basis for its requests for relief for subsequent offers and counteroffers need not be in writing and may be issued orally.
6. Mediators should handle conciliation, not investigators: One commenter urged the Commission to assign mediators to handle conciliations instead of investigators.
Commission response: The Commission disagrees with this comment and shall not adopt it. As the Commission has maintained throughout this process, it is not looking fundamentally to change its conciliation structure with this rule. Investigators remain in the best position to handle conciliation discussions as they are familiar with the case and the issues surrounding it. Furthermore, the process and purpose of conciliation is different than mediation. Accordingly, the Commission rejects this proposal.
7. The Commission should disclose additional information: A number of commenters stated that the Commission should make certain disclosures under sections 1601.24d1, such as the identity of harassers or at-fault supervisors and potential class sizes.
Commission response: The Commission agrees that these disclosures will allow respondents to better assess their potential liability by identifying discriminatory practices, policies, and actions, and as a result advance the Commissions conciliation efforts to identify and eliminate discriminatory employment practices.
However, the identities of harassers or supervisors may not be known at the time of conciliation. Similarly, sometimes class size may not have been fully determined. Accordingly, the final rule makes the disclosures references in the last two sentences of 1601.24d1
mandatory, only if known to the Commission.

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8. Establish a good faith standard:
A few commenters requested that the Commission impose a good faith standard on itself during conciliation.
Commission Response: At the outset, the Commission rejects the notion that it does not undertake its statutory responsibilities in good faith. All Commission employees are expected to approach conciliation in good faith and endeavor to achieve conciliation and its purposes within the framework of the Commissions procedures. In those situations where a respondent may disagree with the Commissions strategy in a particular case or a hard line taken in discussions does not mean that Commission personnel are not acting in good faith. The Commission declines to impose upon itself a standard as suggested that could open a door to collateral litigation. For these reasons the Commission declines to adopt such a standard, preferring the straightforward approach as updated by the final rule.
9. Alter the privilege standard:
Several commenters requested that the Commission revise provisions concerning privilege contained in sections 1601.24e and 1626.12c.
Specifically, these commenters argued that the Commission should preclude itself from claiming privilege on the underlying facts it gathers and limiting the discretion of Commission employees in identifying privileged material.
Commission response: The Commission declines to make specific statements regarding privilege beyond that which is set forth in the proposed rule. The Commission will continue to claim all privileges to which it is entitled by law. The Commission declines to amend the rule to outline specific criteria for employees to follow concerning assertions of privilege.
10. Confidentiality of conciliations:
Multiple commenters asked that the Commission prohibit itself from seeking publication of the conciliation, through terms in the conciliation agreement.
One commenter explains that, in their experience, it is common for the Commission to require, as a condition of successful conciliation, that a respondent agree to waive confidentiality and allow the Commission to issue a public press release announcing some or all of the terms of the parties agreement. The commenter contends that this serves not only to deter employers from entering conciliation at the outset but can serve to lead a case that might otherwise be resolved via conciliation to instead fail to be resolved in conciliation.
Commission response: The Commission will not make this change.

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