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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
earlier than it can through litigation. By providing such information, the Commission can alleviate criticisms that demands are excessive or not supported by the evidence and the law. Providing this information should facilitate respondents identification and redress of discriminatory practices regardless of the outcome of conciliation. Provided with this information, the Commission believes that a greater number of respondents will be more likely to engage in the conciliation process and comply voluntarily to resolve the charge. And by employing its revised conciliation procedures, the Commission will satisfy the requirements of 42 U.S.C. 2000e5b, as elucidated in Mach Mining. The Commission hopes that this final rule will reduce collateral attacks on the conciliation process during Commission litigation. In the event of such a challenge, the Commission will be able to demonstrate that it has met the conciliation requirements of the statute by submitting an affidavit stating that it has taken the required steps. See Mach Mining, 575 U.S. at 49495. Ultimately, the Commission has concluded that the final rule will improve its ability to carry out in more cases its statutory mandate to eliminate discriminatory employment practices and achieve relief for workers far more quickly than could litigation proceeding at its often ponderous pace. Ford Motor Co., 458
U.S. at 228.
As noted above, by improving the Commissions effectiveness to carry out its conciliation responsibilities, the final rule also affords considerable benefits to charging parties. As the EEOC is only able to litigate a small fraction of cases that fail conciliation, in most cases where conciliation fails, workers must fend for themselves in court to obtain relief. This means that charging parties must file and litigate their own lawsuits to secure any relief. Many choose not to sue. And, as several commenters noted, those that decide to seek legal action may be in the position of having to litigate without counsel. Even those who obtain counsel frequently fail to obtain significant relief and, if they prevail, may wait years for discovery, motions, trial, and appeals to conclude.
By resolving more cases through conciliation, more victims of discrimination will obtain relief than would have otherwise and even the ones that would have obtained relief through litigation eventually, will receive relief more quickly, without incurring the expense and risk of litigation.
Suggestions by Commenters: Several commenters who supported the
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proposed rule also suggested what they saw as improvements. The Commission addresses each of the suggestions below:
1. Extend the time period by which respondents must respond to the Commissions conciliation offer beyond fourteen days: Several commenters stated that the Commission should give respondents more than 14 days to respond, especially in certain complex and systemic cases.
Commission response: The Commission declines to change the language or the requirement as it was originally proposed in sections 1601.24d5 and 1626.12b5 because the Commission concludes that these sections contain sufficient flexibility to allow longer response periods in appropriate cases. The proposed rule stated that respondents will be provided at least 14 days. There will certainly be cases where the Commission extends this period beyond 14 days, and the language allows the Commission to make this determination on a case-bycase basis. As a result, the Commission leaves unchanged the proposed language in the final rule.
2. Allow anonymity in circumstances only where charging parties or aggrieved individuals are at risk of retaliation:
Several commenters urged the Commission to limit the charging parties or aggrieved individuals to whom it grants anonymity in conciliation under sections 1604.24d1 and 1626.12b1.
Specifically, commenters suggested that the Commission grant anonymity only to current employees of the respondent because they, unlike former employees or failed applicants, are at risk of retaliation. Commenters indicated that it is often difficult to respond to the Commissions findings of discrimination, particularly in individual cases, when they do not know the identity or circumstances of a particular victim. Although conciliation is not intended to provide an opportunity to challenge the cause finding, one commenter noted that that a respondent could face an allegation that it did not hire an individual because of her race and that if the identity of the individual is withheld, it would not be able to determine if there were other reasons the individual was not hired, such as failing to show up for her interview.
Commission response: The Commission acknowledges that it in some cases it may be difficult for respondents to evaluate the merits of the Commissions conciliation proposal if the respondent is unaware of the identity of the victims. Respondents do receive the name of the charging
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parties when they are notified of the charge soon after it is filed. Some commenters suggest that anonymity be limited to only current employees recognizing their concern about potential retaliation. However, the Supreme Court has noted that former, current, and prospective employees are protected from retaliation. See Robinson v. Shell Oil Co., 519 U.S. 337, 34546
1997. Therefore, the Commission does not adopt this proposed change.
3. Requiring the charging party to participate in conciliation: One commenter suggested that the charging party should be required to participate in the conciliation, similar to a mediation.
Commission response: The Commission declines to adopt this proposed change. In conciliation, the Commission does not merely serve as the advocate of the charging party or aggrieved individual. Rather, the Commissions core objective is to vindicate the publics interest and eliminate discriminatory employment policies and practices. In some cases, but not all, this will achieve relief for the charging party as well as other workers and potential employees. Given these varied interests, conciliations take different forms and the charging partys participation varies from case to case for a myriad of reasons. The Commission believes it is important to the Commissions ability to achieve the broader purposes of conciliation to preserve its flexibility regarding the involvement of the charging party in each case. See EEOC v. Waffle House, Inc., 534 U.S. 279, 291 2002 The statute clearly makes the EEOC the master of its own case and confers on the agency the authority to evaluate the strength of the public interest at stake.. As a result, the Commission declines to mandate the charging partys participation in every instance.
4. Commission must respond to all counteroffers and affirmative defenses:
Multiple commenters stated that the rule should require the Commission to respond to all counteroffers a respondent makes and that the Commission must respond to all affirmative defenses that are raised during conciliation.
Commission response: Conciliation is, first and foremost, the means Congress preferred the Commission to use to target and eliminate discrimination in employment. Indeed, Congress did not afford the Commission authority to commence litigation until 1972.
Conciliation is not a rigid, structured, bargaining framework. As the Supreme Court made clear in Mach Mining, Congress afforded the Commission wide
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