Congress seeks to restore flexibility to EEOC’s conciliation process

Using the Congressional Review Act, the U.S. House of Representatives joined the Senate and voted to overturn the Trump Administration conciliation rule which became effective February 16, 2021.  The rule obligated EEOC to engage in conciliation to resolve discrimination charges instead of simply affording victims a cause for action for damages.  If President Biden signs off on the repeal, as expected, the conciliation rule is legally treated as if it never existed,

Title VII of the Civil Rights Act of 1964 requires EEOC to try to conciliate charges of discrimination which the agency believes have merit before considering litigation. In 2015, in the Mach Mining, LLC v. EEOC case, the Supreme Court decision outlined what the agency needs to do to satisfy the conciliation requirement.  As a result of the overturning the conciliation rule, EEOC’s conciliation process can now revert back to standards set forth by the Supreme Court in 2015.

“The action by Congress restores the Commission’s flexibility to tailor the conciliation process to the facts and circumstances of each case, thus increasing the likelihood of a successful resolution,” said EEOC Chair Charlotte A. Burrows.

Prior to the adoption of the newly rescinded rule, the EEOC recovered $38.8 million for victims of discrimination through conciliation.