This article was republished in Law360 on September 26, 2023.
On August 22, 2023, the Equal Employment Opportunity Commission (EEOC) announced it approved its Strategic Plan for the Fiscal Years 2022-2026. The Strategic Plan sets forth the EEOC’s strategies and objectives for achieving its mission of preventing and remedying unlawful employment discrimination and advancing equal employment opportunity. Employers should look to the Strategic Plan for insight regarding the areas of enforcement that the EEOC is most likely to focus on during the next few years.
A few of the EEOC’s areas of focus through the 2026 fiscal year include:
The EEOC’s intent to increase monitoring and enforcement of conciliation agreements is noteworthy because it signals the EEOC may engage in more proactive and/or aggressive tactics to verify whether employers are complying with the terms of their conciliation agreements.
Thus, employers should avoid an “out of sight, out of mind” mentality with respect to seemingly resolved discrimination charges, even despite the need to triage more immediate business and personnel issues, such as active litigation and time-sensitive investigations. As discussed below, employers should thoroughly understand the scope of the conciliation process and make conscious efforts to monitor compliance with EEOC conciliation agreements after an agreement is reached.
Conciliation is an informal and confidential process overseen by the EEOC aimed at settling a charge of discrimination. Under Title VII, if after an investigation the EEOC determines there is reasonable cause to believe discrimination occurred, the EEOC is statutorily required to engage in conciliation as an effort to eliminate the alleged unlawful employment practice through informal means. The EEOC must engage in the conciliation process before it can file a lawsuit regarding the alleged discrimination. To initiate conciliation, the EEOC will issue a Letter of Determination setting forth its investigation findings and inviting the responding party to engage in conciliation.
If the respondent agrees to conciliate, the parties will communicate with their EEOC investigator to develop an appropriate remedy for the discrimination, and the respondent may present counter-offers for consideration. Conciliation is voluntary, and the parties must agree to the resolution. While conciliation can be an effective, efficient, cost-sensitive method of resolving discrimination charges, neither the employer nor the EEOC can be forced to accept particular terms. If the parties reach an agreement, the terms will be formalized in a conciliation agreement that has the full force and effect of a standard settlement agreement. If conciliation is unsuccessful, the EEOC may decide to file a lawsuit against the respondent.
In light of the EEOC’s forthcoming enhanced monitoring and enforcement of conciliation agreements, employers should consider the following points to avoid negative consequences.
So, even if you have not received any recent follow-up from the EEOC, you should address any lapse in compliance as soon as possible to avoid greater exposure down the line and fully abide by the terms of the agreement.