June 6, 2023

Volume XIII, Number 157


June 06, 2023

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June 04, 2023

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Trump-Era EEOC Conciliation Rule Repealed

On June 30, 2021, President Biden signed a joint resolution narrowly passed by Congress to repeal a Trump-era rule that would have increased the EEOC’s information-sharing requirements during the statutorily mandated conciliation process.

Under the Trump-era rule, the EEOC would have been required to give each employer the identity of the complainant, a written summary of the facts of the case, its legal bases for finding discrimination, and the criteria it would use to identify potential class members, as well as an estimate of the potential class size, if applicable.

The EEOC was not previously required to share this information upon initiating conciliation. Rather, conciliation has historically been an informal, voluntary, and confidential process during which the EEOC, charging party, and employer consider settlement once the EEOC has found reasonable cause to believe discrimination occurred.

Before the Trump-era rule, the EEOC followed the Supreme Court’s guidance set forth in Mach Mining, LLC v. Equal Employment Opportunity Commission when meeting its conciliation requirements, which have been viewed by employers as minimal. Now that Congress has overturned the more rigid conciliation rule with President Biden’s support, the EEOC will revert to the standards set forth by Mach Mining to satisfy its conciliation obligations.

EEOC Chair Charlotte Burrows lauded Congress’s repeal of the Trump-era rule, stating that the change “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.”

In short, because of the rule change, the EEOC retains its discretion to limit the amount of information shared with the employer at the conciliation stage.  Employers should not be surprised if certain relevant information—such as witness identities, factual evidence, and damages information—is not shared through the conciliation process.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 195

About this Author

Savannah R. Gibbs Employment Attorney Hunton AK Houston

Savannah represents corporate clients in substantial discrimination, trade secret misappropriation, and wage and hour litigation. She guides her clients through all aspects and stages of labor and employment matters, approaching her role as advocate with each client’s specific needs and long-term goals in mind.

Before joining the firm, Savannah served as a two-year judicial law clerk to the Honorable Lynn N. Hughes in the US District Court for the Southern District of Texas. Savannah uses her two years of experience viewing a broad band of cases...

Ryan M. Bates Labor & Employment Litigation Attorney Hunton Andrews Kurth Law Firm

Ryan’s practice spans all aspects of employment law. He has distinguished himself as a nationwide litigator handling complex employment litigation, including class actions, collective actions, and “bet the company” litigation. Ryan routinely conducts internal investigations and counsels nationwide clients on difficult compliance issues.

Relevant Experience

  • Regularly defends employers against class actions and collective actions alleging exemption misclassification, independent contractor...