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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
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Commission received evidences that interested persons had a meaningful opportunity to comment.
In addition, the Commission conducted a meeting that called attention to the proposed rule.
Specifically, on August 18, 2020, the Commission held a public meeting to discuss and vote on the NPRM. Notice of the meeting was published in the Federal Register which identified the topic of the meeting. The public was invited to listen to the meeting live.
Press reports before and after the meeting reported the discussion of the proposed rule. The transcript of the meeting was timely uploaded on to the EEOC website.4 As a result, the public had notice of this proposed rule from several sources and ample opportunity to research and evaluate the proposal, beginning nearly two months before the NPRM was published in the Federal Register. The Commission concludes that the length of the comment period on this rule was appropriate and declines to extend it.
Allegation that the Rule is Premature Because of the Ongoing Pilot Program:
Some commenters contend that the NPRM fails to acknowledge the Commissions ongoing pilot program regarding conciliation procedures and that the Commission should wait to finalize the rule until after the pilot has concluded and been studied. Others argued that the public too should be given the opportunity to study the pilot and incorporate those efforts in further comments regarding this rule. Some commenters expressed concern that the results of the pilot program could be at odds with the rule, suggesting the Commission should delay the final rule to ensure harmony with the results of the pilot.
Commission response: In May of 2020, the EEOC launched a six-month pilot program. The pilot was extended in November 2020. This pilot made only a single change to the conciliation process.5 Specifically, the pilot added a requirement that conciliation offers of certain amounts be approved by the certain levels of management prior to being shared with respondents. This 4 See https www.eeoc.gov/meetings/meetingaugust-18-2020-discussion-notice-proposedrulemaking-conciliation.
5 Concurrently with the pilot, the agency conducted refresher training on conciliation practices. In addition to training on the pilot, the refresher training included an emphasis on the predetermination interview PDI requirement, which is conducted before the Commission issues its reasonable cause finding. While some overlap may occur between what employees are already expected to disclose during the PDI and what this final rule ensures is disclosed during conciliation, the pilot did not require any new disclosures.

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requirement adds additional oversight by management to ensure that conciliation proposals are in line with the facts of the case. The pilot program is not related to this rulemaking; it addresses a different aspect of conciliation. It does not incorporate or add any of the changes to the conciliation procedures that were proposed or are being implemented in this final rule. Given the lack of overlap or connection between the pilot program and this rule, the results of the pilot are not relevant to this rulemaking and there is no reason to delay the latter so that the Commission or the public may study the former. As this rule is neither related to nor dependent on the pilot or its outcome, the Commission declines the delay sought by these commenters.
Comments that the Rule Primarily Benefits Employers and Respondents:
Some commenters faulted the rule for requiring the Commission to disclose certain information to respondent automatically, while only providing the information to charging parties and aggrieved individuals upon request.
Others raised concerns that the new rules could turn the conciliation process into quasi-litigation by making conciliation more formal and could generate collateral litigation. Still others expressed concern that the disclosures contemplated could potentially reveal the Commissions litigation strategy and inadvertently assist respondents in litigation.
Commission Response: The Commission appreciates the concerns expressed regarding the circumstances under which disclosures are made to respondents versus charging parties and aggrieved individuals. However, because the Commission is mindful of the need to maintain flexibility with respect to how staff engage with charging parties and aggrieved individuals, and recognizes the burden disclosure would impose upon staff, the Commission will retain the language upon request.
The Commission is implementing the final rule to improve conciliation. The final rule should enhance the Commissions effectiveness in executing its statutory mandate to identify and eliminate discriminatory employment practices and obtain appropriate relief for victims without litigation, as Congress preferred. The rule accomplishes this end by requiring that the Commission provide certain basic informationthe facts and law in support of the claim and who or what class of victims was affected by the allegedly discriminatory practicethat it already develops. By providing this
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information, respondents can better identify and correct the discriminatory action, policy, or practice. By facilitating such a result without litigation, the Commission achieves its primary goal of ending the discriminatory practice and potentially impacting other employees who may have been affected by the practice. As a result, the primary beneficiaries of more effective conciliations are victims and potential victims of discrimination, as well as the public. The Commission intends for these improvements to encourage more respondents to engage in the process, thus increasing the likelihood of voluntary compliance, and successful conciliations. These results should also provide benefits to discrimination victims by obtaining relief far sooner than would be possible in litigation. Without successful conciliation, employees and applicants are, in most cases, left to fend for themselves to try and obtain relief through litigation. For these reasons, the Commission disagrees with commenters assertion that the final rule primarily benefits employers.
Nothing in the final rule is intended to create new causes of action for respondents or others; to the contrary, the rule is designed to alleviate concerns that the Commission has failed to meet its conciliation obligation, as explained in Mach Mining. Should the Commissions conciliation efforts be challenged in litigation, the final rule provides a framework that allows the Commission to easily demonstrate it has met the requirements laid out in Mach Mining, by simply affirming through an affidavit that it followed the procedures described in the statute. Thus, rather than raising the likelihood of collateral litigation over conciliation, the final rule will have the opposite effect by providing a guidepost for the Commission to follow in meeting its conciliation obligations. Furthermore, as the Commission pointed out in the NPRM, the confidentiality provisions of Title VII are inherent barriers to a probing judicial review of conciliation and protects the information disclosed.
See 85 FR at 6408081. For these reasons, the Commission has determined that this final rule will not unnecessarily open its conciliation process to judicial review or collateral attacks from employers.
The Commission appreciates the concerns expressed regarding the circumstances under which disclosures are made to respondents versus charging parties and aggrieved individuals.
However, because the Commission is mindful of the need to maintain flexibility regarding how staff engage
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