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President Biden and Congress Nullify Trump-Era EEOC Conciliation Procedures

We reported on the conciliation procedures that the EEOC proposed during the Trump administration’s waning months. Those procedures, with some revisions, took effect in February 2021.
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Some complained that the new procedures were too rigid and tipped the conciliation scale in favor of employers, making it harder for workers to vindicate their civil rights. Said the House Education and Labor Committee:

The rule’s rigid requirements undermine the potential for successful settlements and impairs the EEOC’s capacity to investigate and remedy discrimination. Specifically, the rule:

  • Gives employers unfair advantages in litigation by allowing them premature access to information about the worker’s case,
  • Increases the risk of retaliation by making it easier for employers to demand the identities of victims and witnesses, and
  • Is expected to increase backlogs of cases due to burdensome new process requirements.

Heeding such concerns, and acting under the Congressional Review Act, Congress voted to overturn the new requirements, a development that the EEOC immediately hailed.

“Conciliation is a critical tool to help protect the civil rights of America’s workers,” said EEOC Chair Charlotte A. Burrows. 

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. EEOC is committed to resolving cases in conciliation whenever possible as one of the most effective means to remedy and prevent discrimination in the workplace.

The Office of Management and Budget has announced that President Biden supports the measure in a statement published on May 18, 2021. Thus, if he signs it, as expected, the challenged conciliation procedures will be treated as if they never took effect.

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