Should the Equal Employment Opportunity Commission’s Conciliation Rule Be Reversed? (S. Joint Res. 13)

What is S. Joint Res. 13?

(Updated February 23, 2022)

This bill was enacted on June 30, 2021

This resolution of disapproval would repeal the Trump administration’s rule that updated conciliation procedures for complaints filed with the Equal Employment Opportunity Commission (EEOC). The “Update of Commission’s Conciliation Process” (aka the “conciliation” rule) was finalized in January 2021 and implemented the next month. It aims to improve the effectiveness of the EEOC’s conciliation program by requiring that employers be provided with information about the claim, the agency’s findings, and at least 14 days to respond before a lawsuit is filed. When it finds discrimination, the EEOC is required by Congress under the Civil Rights Act of 1964 to attempt conciliation before resorting to a lawsuit, and this disapproval resolution would undo the new regulatory framework for that process without eliminating the statutory requirement to attempt conciliation. 

In cases where it finds evidence of discrimination, the EEOC is must provide the employer with notice of the specific allegation — including the facts and law supporting the claim, findings, and demands — before it endeavors to “eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Employers then have at least 14 days to respond before being sued. The EEOC’s conciliation regulatory procedures were issued in 1977 and haven’t been significantly modified prior to the 2021 rule, the agency’s conciliation efforts resolve less than half of charges where evidence supports a discrimination finding.

Congress has the authority to overturn rules within 60 legislative days with simple majority votes in both chambers along with the president’s signature under the Congressional Review Act. If this resolution were enacted, future similar rules couldn’t be enacted without Congressional approval.

Argument in favor

The conciliation rule developed by the EEOC under the Trump administration advantages employers in cases where employees raise credible claims of discrimination, it should be repealed so that the Biden administration can craft a more suitable version of the regulation.

Argument opposed

The EEOC’s conciliation rule is a good faith effort to fulfill Congress’s requirement that the agency seek conciliation before suing employers at taxpayer expense. The rule was only implemented earlier in 2021 and should remain in effect until there’s evidence of its deficiencies.

Impact

EEOC complainants and businesses facing complaints; and the EEOC.

Cost of S. Joint Res. 13

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Senate Health, Education, Labor & Pensions Committee Chairwoman Patty Murray (D-WA) introduced this resolution of disapproval to overturn the Equal Employment Opportunity Commission’s (EEOC) “conciliation” rule that was developed during the Trump administration. Murray says the rule 

“This unfair, anti-worker rule was designed to tip the scales in favor of employers when workers try to make sure their rights on the job are enforced. There’s absolutely no reason it should stay on the books. We’ve got momentum on our side to restore a fair process where workers can be heard, and that’s what we’re going to do.”

House Education and Labor Committee Chairman Bobby Scott (D-VA) introduced companion legislation in the House and offered the following statement about their resolution to reverse the EEOC’s conciliation rule:

“When workers bring credible claims of discrimination to the EEOC, they deserve a fair process that protects their rights and shields them from retaliation. Unfortunately, the new rule forces the EEOC to abide by a strict formalized process that was previously struck down by the Supreme Court six years ago and would strip the EEOC of the flexibility to act in the best interests of workers. By repealing this rule, Congress will eliminate wasteful litigation that would cause substantial delays or even deny justice for victims of discrimination.”

Senate Minority Leader Mitch McConnell (R-KY) spoke on the Senate floor in opposition to the resolution to overturn the conciliation rule, which he defended as a needed regulatory update in his remarks:

“Under Republican leadership, the Equal Employment Opportunity Commission, an aggressive Washington regulator of the American job market, issued modified marching orders that increased transparency and decreased the odds of expensive lawsuits. Several years back, one investigation found the EEOC had become very aggressive and was perpetrating a kind of legal harassment on job creators — often leaving American taxpayers on the hook for court cases which the Commission lost. Taxpayers were paying to sue job creators and lose in court. So Republicans updated their guidance. It was the first substantial update of the way the EEOC handles disputes and conciliation since 1977. It said that the employer in question deserves a written summary of the facts behind a complaint, a written explanation of the legal justification, a few other details, and 14 days to respond. This helps ensure the Commission is making a good-faith effort to see if the dispute can be settled outside of court before beginning a costly, adversarial process.”

The U.S. Chamber of Commerce wrote a letter to congressional leadership to express the organization’s opposition to the resolution repealing the rule, which read in part:

“The EEOC is required by federal discrimination statutes to attempt to conciliate, or settle through negotiations, a matter with any party when the agency has determined that there is a reasonable cause to believe that discrimination or retaliation has occurred. Should this attempt at conciliation fail, then the EEOC can file a lawsuit. The new rules will enhance this settlement process by providing all parties with the factual and legal basis for a reasonable cause determination. By doing so, the likelihood that conciliation will produce a settlement is increased, thus increasing the likelihood that the employee will get restitution sooner and with less cost than if the matter goes to litigation. EEOC’s new procedures strike a fair balance, with EEOC only disclosing basic legal and factual information about the underlying claim. The new regulation does not require EEOC to disclose the full details of the case nor violate any charging party’s confidentiality. We urge you to oppose efforts to disapprove of these well-crafted updated regulatory procedures.”

The EEOC voted to finalize the conciliation rule on a party-line 3-2 vote prior to it taking effect in February 2021.

Media:

• Sponsoring Sen. Patty Murray (D-WA) Press Release

• Senate Minority Leader Mitch McConnell (R-KY) Floor Remarks (Opposed)

• Chamber of Commerce (Opposed)

• Federal Register - EEOC Update of Commission’s Conciliation Procedures

• EEOC Conciliation Rule Press Release

• Bill Text