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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
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amount of time or resources, or take any specific steps or measures in any conciliation. Once the information has been provided, the Commission alone decides in each case how it will respond to a particular respondent, the manner and particulars of how it will negotiate, and how long it will do so.
See id. at 492. The Commission alone decides whether in the end to make an agreement or resort to litigation, including whenever it is unable to secure terms acceptable to the Commission. Id. The final rule ensures clear and consistent satisfaction of statutory requirements in accordance with the Courts opinion in Mach Mining while maintaining the Commissions flexibility to conciliate as it deems appropriate.6
While several commenters expressed a preference for internal guidance or pilot programs rather than a rule, the Commission has previously implemented Quality Enforcement Practices and internal guidance to enhance its conciliation efforts, changes that resulted in significant training of EEOC staff. While these changes improved the conciliation process, the Commission believes more should be done to build on that progress and has concluded the structure and predictability of a rule is the best way to make sure that it is consistently satisfying its statutory conciliation obligations. As already noted in the NPRM and above, less than half the cases for which the Commission finds reasonable cause are resolved through conciliation. The Commission aims to achieve more success, including fewer cases in which the respondent opts out of the process entirely. The Commissions purpose is to enhance the processes that will improve its ability to remedy unlawful discrimination without the need to resort to litigation.
Some commenters argued that conciliation is already successful and that the allegedly rigid procedures imposed in the final rule are unnecessary. One commenter noted that following Mach Mining, the amount of collateral litigation attacking conciliation decreased and the number 6 As the Court explained in Mach Mining and the Commission noted above, Congress left to the EEOC such strategic decisions as 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. So too Congress granted the EEOC 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. at 492. The final rule does nothing to limit or curtail this discretion that the Commission has applied for decades in pursuit of its mission to eradicate unlawful employment discrimination.

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of successful conciliations increased.
An increase in successful conciliations is admirable and the Commission recognizes and commends the achievements of its employees in the conciliation process. Nothing in the final rule diminishes or recharacterizes that success. To the contrary, the final rule aims to build upon that success. As noted in the NPRM, from fiscal years 2016 to 2019, the Commission successfully conciliated approximately 41.23% of those cases in which it found reasonable cause. This amounts to only a slight increase over the previous four fiscal years. Also, during these years, employers continued to decline to participate in conciliation in approximately 33% of such cases. 85 FR
at 64080. The Commission is concerned about the overall rate of successful conciliation and that one-third of employers refuse to participate in conciliation. While there may be many reasons why an employer refuses to conciliate, at least some of these respondents may be motivated, at least in part, by the belief that the current conciliation process is flawed and not worth the effort. The Commission is not targeting a specific percentage of successful conciliations or employer participation. However, the Commission is making minor changes that it believes will allow it to continue to improve its processes and, in so doing, identify and eliminate more discriminatory employment practices.
Finally, this final rule is consistent with section 706 of Title VIIs use of informal when describing the Commissions efforts to resolve cases after finding reasonable cause, and in turn, the Commissions procedural rulemaking authority. The Commissions final rule does not establish a formal process, but instead provides basic procedures for information sharing that are fundamental to any settlement discussion. The rule does not establish quasi-litigation with formal rules of evidence or rules of procedure that would be found in federal court. It instead establishes base level procedures, but otherwise leaves conciliation as an informal process that can be adjusted as needed by the case.
Concerns that the Commission Did Not Justify How the Rule Furthers Its Enforcement Mission: A few commenters contended that the Commission had not presented any statistics or other data to support its belief that the proposed changes would make successful conciliation more likely or increase respondents participation in conciliation. In addition, one commenter, argued that
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many respondents simply have no interest in conciliating, for reasons beyond the Commissions control. In support of this position, the commenter described instances in which employers agreed to resolve a matter after the Commission had filed suit for a higher amount than what the Commission offered in conciliation. Finally, other commenters challenged the portions of the proposed rule requiring that the Commission disclose information obtained that caused it to doubt there was reasonable cause on a variety of grounds.
Commission response: The Commission has explained the reasons it believes that the final rule is reasonably likely to increase participation in conciliation. These provisions should encourage greater confidence that the communications in the conciliation process will include the sort of information that the Court determined were required. Providing such basic factual and legal information will encourage more employers to participate and will provide them with a better understanding of the Commissions position.
As explained above, there are many reasons that respondents elect not to conciliate and, as the commenter explained, some of these reasons are beyond the Commissions control. A
decision by a respondent to settle a case during litigation for more than what it could have settled during conciliation actually supports the Commissions reason for the rule change. In these situations, a respondent was willing to reach an agreement with the Commission after it received more information about the strength of the case against them, which they obtained in the litigation process. By better explaining its case in conciliation, the Commission makes it more likely that respondents will understand the risk of litigation and be more willing to resolve the matter during conciliation, freeing the Commissions resources to litigate other more challenging cases.
The Commissions Office of Enterprise, Data, and Analytics OEDA
has conducted a comprehensive analysis of the reasons why conciliations fail.7 Their analysis identifies two primary reasons charges are not resolved through conciliation:
1 The respondents choice not to participate and 2 the parties cannot agree on monetary relief. OEDAs statistics also indicate that in cases 7 The need to complete this analysis was cited by a commenter opposed to the proposed rule as a reason not to move forward. The analysis has been completed and is consistent with the changes made in the final rule.

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