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senate Bill S. Joint Res. 13

Should the Equal Employment Opportunity Commission’s Conciliation Rule Be Reversed?

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administration advantages employers in cases where employees raise credible claims of discrimination, it should be repealed so that the Biden administration can craft a more suitable version of the regulation.

jimK's Opinion
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05/19/2021
At its core, the conciliation rules remove the discretion of the EEOC to pursue legal remedies without first dealing with employers. No other legal process is required to inform the defendant of a potential legal action until the plaintiff, with appropriate due cause, is given time to investigate the potential illegality of the defendant’s actions. This rule undercuts established legal practice of allowing the plaintiff to investigate and build a case without giving a potential defendant an opportunity to suppress evidence. Whether or not to pursue conciliation should be at the discretion of plaintiff’s attorneys and the EEOC - and not be a federally mandated first step.
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Frank-001's Opinion
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05/19/2021
PASSED THE SENATE 50 TO 48 Under Trump "Reconciliation" is just code for "Rule in favor of his cohorts." He was and is a Quid pro Quo kind of guy; heavy on the Quid. Remember how Donald Trump gleefully undermined and undercut just about everything accomplished during the Obama Administration? Well, Trump DID NOT make things better. In most cases his executive orders and whatever policies his people cobbled together were total failures and made things worse for the majority of people of this country. So, while we should not take joy in having to undo the damage done in Trump’s four years, undo it we must, the majority of us will be the better for it.
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Bruce's Opinion
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05/19/2021
Seriously, Trump rules always favor corporations above all else--especially above living breathing human beings. Revoke this terrible rule immediately.
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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.

Freethinker's Opinion
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05/19/2021
This is common sense. If a resolution can be had prior to going to court by both parties this just improves efficiency and resources = overall costing less. Otherwise the employee that was discriminated against will wait at least a year or longer before seeing any monetary relief. How can you argue less cost and efficient processes? Oh right maybe if you’re dem and just don’t like Trump and want to reverse all his policies right? Take Trump out of the equation and evaluate it without biases.
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B.R.'s Opinion
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05/19/2021
This rule makes sense on all levels for both parties, and is worth the while to keep in place to determine its effectiveness/objective. Just once, I would like to see the anti-Trumpers judge an issue on its on merit as opposed to it's Trump and it must go.
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JediJ's Opinion
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05/19/2021
The current version just went into effect and should be given time for proper evaluation and review of the impact
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What is Senate Bill S. Joint Res. 13?

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.

Impact

EEOC complainants and businesses facing complaints; and the EEOC.

Cost of Senate Bill S. Joint Res. 13

A CBO cost estimate is unavailable.

More Information

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:

Summary by Eric Revell

(Photo Credit: iStock.com / designer491)

AKA

A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Equal Employment Opportunity Commission relating to "Update of Commission's Conciliation Procedures".

Official Title

A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Equal Employment Opportunity Commission relating to "Update of Commission's Conciliation Procedures".

joint resolution Progress


  • Not enacted
    The President has not signed this bill
  • The house has not voted
  • The senate Passed May 19th, 2021
    Roll Call Vote 50 Yea / 48 Nay
      senate Committees
      Committee on Health, Education, Labor, and Pensions
    IntroducedMarch 23rd, 2021

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    At its core, the conciliation rules remove the discretion of the EEOC to pursue legal remedies without first dealing with employers. No other legal process is required to inform the defendant of a potential legal action until the plaintiff, with appropriate due cause, is given time to investigate the potential illegality of the defendant’s actions. This rule undercuts established legal practice of allowing the plaintiff to investigate and build a case without giving a potential defendant an opportunity to suppress evidence. Whether or not to pursue conciliation should be at the discretion of plaintiff’s attorneys and the EEOC - and not be a federally mandated first step.
    Like (35)
    Follow
    Share
    This is common sense. If a resolution can be had prior to going to court by both parties this just improves efficiency and resources = overall costing less. Otherwise the employee that was discriminated against will wait at least a year or longer before seeing any monetary relief. How can you argue less cost and efficient processes? Oh right maybe if you’re dem and just don’t like Trump and want to reverse all his policies right? Take Trump out of the equation and evaluate it without biases.
    Like (23)
    Follow
    Share
    PASSED THE SENATE 50 TO 48 Under Trump "Reconciliation" is just code for "Rule in favor of his cohorts." He was and is a Quid pro Quo kind of guy; heavy on the Quid. Remember how Donald Trump gleefully undermined and undercut just about everything accomplished during the Obama Administration? Well, Trump DID NOT make things better. In most cases his executive orders and whatever policies his people cobbled together were total failures and made things worse for the majority of people of this country. So, while we should not take joy in having to undo the damage done in Trump’s four years, undo it we must, the majority of us will be the better for it.
    Like (33)
    Follow
    Share
    This rule makes sense on all levels for both parties, and is worth the while to keep in place to determine its effectiveness/objective. Just once, I would like to see the anti-Trumpers judge an issue on its on merit as opposed to it's Trump and it must go.
    Like (18)
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    Reconciliation is only successful 50% of the time, and 1/3rd of companies refuse to participate. This new rule was proposed Aug 2020, the review and comment was shortened from 60 days to 30 days in order to complete the cycle before the election and it was not signed into law until 6 days before Biden’s inauguration when transition should have been occurring but hadn’t. Essentially a lame duck administration forced this ineffective rule through without working with the incoming administration. They had 4 years to pass legislation with control of the Senate but didn’t??? The choices are to have the Executive Branch reverse it or Congress to pass a longer lasting reversal that doesn’t ping pong back and forth with each change of the Executive Branch. https://www.jdsupra.com/legalnews/the-eeoc-s-proposed-rule-on-60384/ https://news.ballotpedia.org/2021/03/26/congressional-resolution-would-block-eeoc-rule-made-at-the-end-of-the-trump-administration/
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    Seriously, Trump rules always favor corporations above all else--especially above living breathing human beings. Revoke this terrible rule immediately.
    Like (10)
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    The current version just went into effect and should be given time for proper evaluation and review of the impact
    Like (7)
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    Carina, what vacuum tube do you live in?
    Like (6)
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    It should be repealed.
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    Get rid of it
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    Reverse everything trump, as I have said before.
    Like (5)
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    Anything implemented by the corrupt and treasonous former administration should be scrutinized as suspect in motive and favorable to the oligarchy currently controlling the federal government. No administration in the history of our country will likely be found to have so brazenly advantaged the wealthy at the expense of the poor and disadvantaged.
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    No, what’s wrong with it that it should be repealed. A job that is filled should be done so by the most capable and qualified individual. One should get the job because they are hard workers and want to do a good job and make a real difference to help improve the world around them. I would rather someone who is very qualified be the pilot of the plane or be a highly skilled surgeon when I’m traveling or having a procedure. The color of one’s skin should not matter. To choose someone to be the pilot or a surgeon because of the color of one’s skin versus their skill and knowledge could result in disastrous outcomes. I don’t care what the color of one’s skin is, but I do care about what they know and whether they are biased against certain ethnicities.
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    This was a ruling not a law passed by Congress. It meant that the commission was to hear a complaint and BEFORE TAKING IT TO COURT AT TAXPAYERS EXPENSE the commission was obligated to let the company know the facts of the case and maybe somethings that could be done to fix the problem as apposed to going to court. The company would then have a near 14 days to respond and if not resolved out of court the commission then can take it to court. Let’s look at an example of a possible EEO complaint. The company has eight employees and there are two shift one day shift and one evening shift. The complaint is that all three of the black employees in the company work on the second shift. Sound like a slam dunk case to go to court right? Not so fast here through the process of the letter to the company of the complaint the company responded with the following information. The company used to only have 4 employees and one shift. Because of the epidemic the company which made face mask decided to try to help in producing more mast so they opened up a second shift and with the shift differential the second shift actually made $1.00 more per hour than the first shift. When the owners of the business looked at the business it was noted that there was no diversity in the workforce. Hence with that in mind there were 20 applications received and there were 5 black one Hispanic and 14 white applicants for the four employees that would be hired. All interviewed were notified that the four positions were all on a new second shift and after one year there might be a possibility to move to the first shift for less money per hour as vacancies come up. A day shift slot may come sooner in which the night shift would have the first shot but no vacancies are planned at this time. When hiring the four employees the company ended up with three black employees and one additional white employees and all four were best qualified for the job not by color of there skin but by the resume submitted and the job interview. Was this company in violation of the EEO laws of this country. No I don’t think so, how about you? Are they doing their best to do the right thing? I think so how about you? Does this case need to go to court because the only three black employees are on the second shift? No don’t think that is necessary but how about you? If it went to court would the company win I think so how about you? Could that one black employee have come to the company first instead of jumping to an EEO complaint? Yes I think so. The second shift started in September last year.
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    With this added protection for workers when in conflict with the corporate world, I rest easier. Thank God, support for labor unions is returning! trump can take a flying leap! How he convinced so many Americans that he was working for the good of the working class, is beyond me.
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    Please vote yes on this
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    Employers don’t need more advantages over their employees.
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    Absolutely
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    Please let’s see if this is effective or not. To work on something you have no clue if it’s broken is counterproductive. Don’t these folks have anything better to do than to reverse ALL of Trump’s legislations? Why don’t these reps WORK FOR THE PEOPLE on things that are truly broken like Freedom of Speech, freedom of religion, and more productive issues!
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    Yes, it only gives back the power to the employees to protect their rights and not be used as SERFS!!!!!!!!!!!!!!!!!!!!!
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