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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
Section 706 of Title VII clearly requires approval to disclose information concerning conciliation. 42 U.S.C.
2000e5b Nothing said or done during and as a part of such informal endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned.. As the Commission has explained, conciliation is a favored method to identify and eliminate illegal discrimination in employment. Publication of conciliation resultsor certain elements of those resultsoften furthers this objective.
There are valid reasons for the Commission to seek approval to publicize certain successful agreements and the Commission will continue to do so where appropriate.
11. Limit disclosure of individuals information to another aggrieved individual: Some commenters were concerned that sections 1601.24f and 1626.12d would result in disclosure of information about other victims to the charging party or to other aggrieved individuals that may violate a victims privacy.
Commission response: The Commission agrees with this concern and has included language in the rule that information may be shared with charging parties except for information about another charging party or individual to ensure that information about an individual is not disclosed to another charging party or aggrieved individual. Although objected to by some commenters who opposed the rule, the Commission will not be taking out the upon request language regarding disclosures to charging parties. It is important for the Commission to maintain its discretion and flexibility with how it engages with aggrieved individuals during the conciliation process. Moreover, the burden on staff to provide this information to all identified aggrieved parties would be substantial in class cases.
12. Commission should always make initial offer: One commenter advocated a requirement that the Commission always make the initial offer in conciliation.
Commission Response: The Commission will not add this requirement to the final rule. Although the Commission agrees that often it is appropriate for the Commission to make the initial offer in conciliation, this is not always the case. There are circumstances in which a respondent may prefer to make the initial offer or where such an outcome is otherwise appropriate or more likely to secure
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terms acceptable to the Commission.
42 U.S.C. 2000e5f1. The imposition of such a procedural requirement could operate to impede the Commissions ability to execute this critical statutory obligation to eliminate unlawful discriminatory practices. Therefore, the Commission declines to make this change.
13. Provide more details to support demands for monetary damages: Several commenters contend that the Commission should require more explanation for the basis of its damages requested in conciliation. One commenter argues that the Commission will often take the position with respect to compensatory or punitive damages that a charging party is entitled to the maximum statutory cap on compensatory and punitive damages from the start. Consequentially, the commenter urges the Commission to make clear that an initial offer should not routinely rely on the maximum statutory damages cap in an attempt to leverage a higher final settlement.
Likewise, another commenter echoes this sentiment and states that the final rule should provide that merely reciting the statutory maximums for compensatory or punitive damages does not satisfy the rules requirements.
Commission Response: The Commission believes that the descriptions provided in sections 1601.24d3 and 1626.12b3 in the NPRM are sufficient because the language covers all requests for damages and relief, including punitive damages.
Under the final rule, whatever the Commissions offerincluding if it is the statutory capmust be accompanied by an explanation based on the facts of the case. Furthermore, the commenters suggestions risk taking away the flexibility that the Commission is seeking to maintain while also increasing transparency in conciliation.
14. Add language about providing funds to third parties: One commenter suggested adding language to the rule that would expressly encourage terms allowing distribution of excess settlement funds to third parties, such as charities.
Commission response: The Commission declines to add this provision. While these type of clauses may be appropriate in certain circumstances, the Commission is aware that they have recently been subject to greater scrutiny. For these reasons, and to ensure maximum flexibility in conciliation and avoid unnecessary encumbrances on its discretion, the Commission concludes that it would be inappropriate to include such a
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provision in its regulations. See Frank v.
Gaos, 139 S. Ct. 1041 2019.
Comments Opposing the Rule Change and the Commissions Responses The EEOC also received comments opposing the rule change. These comments included concerns about the length of the comment period, particularly during the COVID19
pandemic; whether the rule was premature in light of a pilot program;
whether the rule favored employers over workers; whether the rule would undermine the Commissions ability to prevent and remedy discrimination; the rules potential economic impact; the rules relationship to the Mach Mining case; and whether the Commission sufficiently justified the rules impact on its enforcement mission.
Comments Regarding the Length of the Comment Period: Several commenters claimed that a 30-day comment period was too short and asked that it be extended, some citing Executive Order 13563 and arguing that it provides comment periods should generally be at least 60 days. Others suggested that a short time period deprives the public of a sufficient opportunity to weigh in, citing the COVID19 pandemic.
Commission Response: The Administrative Procedure Act APA
requires that agencies give interested persons an opportunity to participate in rulemaking, but it does not establish specific time periods in which a rule must be open for public comment. 5
U.S.C. 553c. Neither does Executive Order 13563, which provides that an agency afford the public a meaningful opportunity to comment through the internet on a proposed regulation, with a comment period that should generally be at least 60 days. The language of the APA and Executive Order 13563
anticipates that some rules are extensive and complex, running scores or hundreds of pages in the Federal Register; others are far less so. As a result, the 60 days benchmark is neither mandatory nor necessarily appropriate for all rules. Here, as with all EEOC rulemakings, the Office of Management and Budget reviewed the NPRM before publication and agreed that the 30-day comment period was appropriate in light of the contents of the proposed rule.3 The comment period must afford the public a meaningful opportunity to comment.
This has occurred. The depth and breadth of the substantive comments the 3 Similarly, Section 6a of Executive Order 12866
states that in most cases the comment period should be not less than 60 days.

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