Voglio sapere a riguardo di…

khammond on DSKJM1Z7X2PROD with RULES

Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations the respondent elects to contest the particular charge or litigate for other reasons. And as more such policies and practices are identified and eliminated, fewer workers will suffer unlawful discrimination.
Concerns That the Rule is Inconsistent with Mach Mining and Statutory Authority: Some commenters argued that the rule is inconsistent with the Supreme Court decision in Mach Mining, and that because the changes are not required by statute or court decision the Commission should not make them. For example, a number of commenters pointed to the language of the Mach Mining decision that said Title VIIs conciliation provision smacks of flexibility to argue that the Commissions proposed rule was contrary to the Courts holding. Id. at 492. Others believe conciliation is already successful and fear that these additional procedures will introduce an unnecessary rigidity that will compromise that success. Still others suggest that any changes to the Commissions conciliation process should be accomplished through internal guidance or pilots instead of rulemaking. Some commenters also claimed that the proposal was inconsistent with the language of Title VII itself, primarily citing to the use of informal in the statute regarding conciliation, and was therefore outside of the Commissions authority.
Commission response: The Commission disagrees that the final rule conflicts with Mach Mining. In Mach Mining, the Supreme Court began by emphasizing the importance of conciliation. The Court noted that Title VII imposes a duty on the EEOC to attempt conciliation of a discrimination charge prior to filing a lawsuit. Mach Mining, 575 U.S. at 486. That obligation, as the Court has held repeatedly, is mandatory, not precatory and is a key component of the statutory scheme. In pursuing the goal of bringing employment discrimination to an end, Congress chose cooperation and voluntary compliance as its preferred means. Id.
punctuation and citations omitted.
When undertaken effectively, conciliation should end discrimination far more quickly than could litigation proceeding at its often ponderous pace.
Ford Motor, 458 U.S. at 228.
The Court found that Title VII
provides certain concrete standards pertaining to what that endeavor must entail. Mach Mining, 575 U.S. at 488.
Based on the statutory language describing the attempt the Commission must undertake in conciliation, namely informal methods
VerDate Sep<11>2014

18:22 Jan 13, 2021

Jkt 253001

of conference, conciliation, and persuasion, the Court explained that those specified methods necessarily involve communication between parties, including the exchange of information and views. Id. citing 42
U.S.C. 2000e5b. Not only does Title VII require communication, the Court continued, but that communication . . . concerns a particular thing: The alleged unlawful employment practice. Id. citing 42 U.S.C. 2000e 5b. Specifically, the Court held, in order to meet the statutory condition, the Commission must tell the employer about the claimessentially, what practice has harmed which person or classand must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. Id. If the Commission does not take those specified actions, it has not satisfied Title VIIs requirement to attempt conciliation. Id.
Beyond these basic requirements that are mandatory in all cases, the Court recognized that the Commission enjoys broad discretion regarding the way in which it conducts conciliations. Id. at 492. The Courts statement regarding flexibility cited by commenters was in support of the latitude Title VII
gives the Commission to pursue voluntary compliance with the laws commands. Id. The Commission is not required to devote a set amount of time or resources or take any specific steps or measures in conciliation. Id. 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. Once it has satisfied its obligations, the Commission decides how it will respond to the respondent and negotiate and how long it will do so. Id. stating that 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..
The Commissions final rule focuses on the requirement that it communicate about the claim. Id. at 488. The Supreme Court held that the Commission must, at a minimum, communicate to the respondent what practice has harmed which person or class in order to comply with its conciliation obligation and that courts may review such efforts to ensure compliance with Title VII. See id. The
PO 00000

Frm 00029

Fmt 4700

Sfmt 4700

2981

Commission has determined that the final rule comprehensively and thoroughly covers the information required to make it compliant with Mach Mining. If respondents raise specious challenges, the Commission will be in a strong position to respond and, as appropriate, seek sanctions or other relief.
Some commenters point out that the rule is not mandated by Mach Mining or Title VII. While the requirements set out in the rule are not spelled out in either the Courts opinion or the statute, the final ruleor any regulationneed not be required by the Supreme Court or a statute to be appropriate. In fact, both Title VII and Mach Mining make clear that the Commission must tell the employer about the claimessentially, what practice has harmed which person or classand must provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. Mach Mining, 575 U.S. at 488. The Commission is exercising its wide latitude and expansive discretion over the conciliation process to clarify the contents of statutorily required communications to respondents in such a way that its satisfaction of the requirements will be clear. Id. at 488
89. The Commission has concluded that a recitation and summary of the factual and legal basis is a core component of any communication about the claim.
This would include the identification of the action or practice the Commission has deemed discriminatory, the reason for its conclusion, as well as what person or class has been unlawfully harmedall so that the respondent might be able to bring itself into compliance. With this rule the Commission is implementing a procedure to ensure that it satisfies the conciliation requirements of Title VII, as elucidated in Mach Mining.
Some commenters argue that the final rule imposes rigid or extensive burdens that will curtail the Commissions flexibility and discretion. As noted above, the final rule requires the Commission to provide certain basic information that the Commission has concluded will categorically satisfy the minimum statutory requirements of its communication with respondents.
Since EEOC staff already perform this work, this rule does not require the reallocation of resources, and is neither extensive nor voluminous. Contrary to assertions in many comments, this does not weaken the Commissions position in conciliation or litigation in that it does not require the Commission to lay all its cards on the table, devote a set
E:FRFM14JAR1.SGM

14JAR1