Under federal civil rights laws, if the Equal Employment Opportunity Commission finds reasonable cause to believe that a charging party has been discriminated against, it must enter into settlement discussions before accepting the charge for litigation or issuing a right to sue letter. This settlement process, called conciliation, in past years often involved an offer by the EEOC. If the employer did not agree to the offer, the conciliation process would be terminated.

Recent federal court decisions emphasized that the conciliation process is not optional, and that the EEOC must engage in an actual effort to resolve the matter. In addition, the EEOC has recognized the low number of charges resolved through the conciliation process. As a result of these concerns, last week the EEOC issued proposed regulations intended to reinvigorate the conciliation process and provide a better atmosphere for settling disputes.

Specifically, the new rules would change the conciliation process by requiring the EEOC to provide following:

1. A summary of the facts that led it to find reasonable cause.

2. An explanation of how these facts create a legal conclusion that the employer violated the charging party’s rights.

3. An explanation of the basis for the settlement proposal, including how any damages calculation was reached.

4. Specific identification of any systemic, pattern, or class designation involved in the claim. If the claim involves a potential class, the EEOC will inform the employer about its process for identifying potential class members.

The EEOC will accept comments on the proposed rules through November 9.