2974 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations 

1The Commission’s failure to conciliate cases 

may have significant ramifications. Each year, failed 

conciliations leave many victims of discrimination 

to fend for themselves. As explained below, too 

often many of these individuals do not commence 

an action in court because they cannot obtain an 

attorney and the prospect of litigating is too 

daunting. Many of those who litigate do so without 

counsel, potentially placing victims at a 

disadvantage. Even those represented by counsel 

may not prevail—and those who do obtain relief 

sought may not receive it until several years after 

the discrimination at issue. By conciliating more 

cases, the Commission will be getting more victims 

relief, preventing more future discrimination, and 

ensuring that relief is more timely obtained. 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 1 

[TD 9941] 

RIN 1545–BO68 and 1545–BO78 

Taxable Year of Income Inclusion 

Under an Accrual Method of 

Accounting and Advance Payments for 

Goods, Services, and Other Items 

Correction 

In rule document C1–2020–28563 

appearing on page 1256 in the issue of 

Friday, January 8, 2021, make the 

following corrections: 

On page 1256, in the first column, in 

the seventeenth line, ‘‘December 31, 

2021’’ should read ‘‘December 30, 

2021’’. 

On page 1256, in the first column, in 

the eighteenth line, ‘‘December 31, 

2020’’ should read ‘‘December 30, 

2020’’. 

[FR Doc. C2–2020–28653 Filed 1–13–21; 8:45 am] 

BILLING CODE 1301–00–D 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

29 CFR Parts 1601 and 1626 

RIN 3046–AB19 

Update of Commission’s Conciliation 

Procedures 

AGENCY: Equal Employment 

Opportunity Commission 

ACTION: Final rule. 

SUMMARY: The Equal Employment 

Opportunity Commission (EEOC or 

Commission) is amending its procedural 

rules governing the conciliation process 

to bring greater transparency and 

consistency to the conciliation process 

and help ensure that the Commission 

meets its statutory obligations regarding 

conciliation. 

DATES: This rule will become effective 

February 16, 2021. However, this Rule 

shall only apply to conciliations for 

charges for which a Letter of 

Determination invitation to engage in 

conciliation has been sent to respondent 

on or after the effective date. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Maunz, Legal Counsel, Office of 

Legal Counsel at andrew.maunz@

eeoc.gov. Requests for this document in 

an alternative format should be made to 

the EEOC’s Office of Communications 

and Legislative Affairs at (202) 663– 

4191 (voice) or (202) 663–4494 (TTY). 

SUPPLEMENTARY INFORMATION: 

Introduction 

On October 9, 2020, the Commission 

published a Notice of Proposed 

Rulemaking (NPRM) outlining proposed 

revisions designed to update the 

Commission’s conciliation procedures 

for charges alleging violations of Title 

VII of the Civil Rights Act of 1964 (Title 

VII), the Americans with Disabilities Act 

(ADA), the Genetic Information 

Nondiscrimination Act (GINA), and/or 

the Age Discrimination in Employment 

Act (ADEA). 85 FR 64079. The NPRM 

described the Commission’s obligations 

to engage in conciliation to resolve these 

charges, as articulated in Title VII and 

other statutes and explained by the 

Supreme Court in Mach Mining, LLC v. 

EEOC, 575 U.S. 480 (2015). 

Conciliation is an essential 

component of Title VII’s statutory 

framework that Congress designed to 

prohibit, identify, and eradicate 

discriminatory employment practices. 

See Alexander v. Gardner-Denver, Co., 

415 U.S. 36, 44 (1974); Ford Motor Co. 

v. EEOC, 458 U.S. 219, 228 (1982) 

(‘‘[t]he ‘primary objective’ of Title VII is 

to bring employment discrimination to 

an end.’’); Griggs v. Duke Power Co., 401 

U.S. 424, 429–30 (1971) (the objective of 

Title VII was to break down 

discriminatory employment practices 

that ‘‘favor an identifiable group . . . 

over other employees’’). Rather than 

simply afford victims a cause of action 

for damages as in other statutory 

regimes, Congress settled on a 

framework that ‘‘preferred’’ cooperation 

and voluntary compliance, over 

litigation. Mach Mining, 575 U.S. at 486 

(citation omitted). The Supreme Court 

explained that Title VII was designed to 

encourage ‘‘ ‘. . . ‘voluntary 

compliance’ and ending discrimination 

far more quickly than could litigation 

proceeding at its often ponderous pace.’’ 

Ford Motor, 458 U.S. at 228. ‘‘Delays in 

litigation unfortunately are now 

commonplace, forcing the victims of 

discrimination to suffer years of 

underemployment or unemployment 

before they can obtain a court order 

awarding them the jobs unlawfully 

denied them.’’ Id. Conciliation was 

designed—and remains—a critical 

component of the Commission’s mission 

to eliminate discriminatory employment 

practices, if possible, without litigation. 

The Commission issued conciliation 

regulatory procedures in 1977 and has 

not changed them significantly since 

that time. See 85 FR at 64079. The 

NPRM described various challenges 

confronting the Commission’s 

conciliation program. Notably, 

approximately one-third of respondents 

who receive a reasonable cause finding 

refuse to participate in conciliation. 

Overall, more than half of the cases in 

which the Commission finds reasonable 

cause that discrimination occurred are 

not resolved through conciliation. Id. at 

64080.1 In order to increase the 

effectiveness of the EEOC’s conciliation 

program and more frequently achieve 

the agency’s statutory mission, the 

NPRM proposed certain targeted and 

straightforward revisions to the 

Commission’s conciliation procedures. 

See 85 FR at 64083–84. The primary 

objective of these revisions is to make 

conciliation a more powerful 

mechanism to halt and remedy unlawful 

discriminatory employment practices in 

a greater percentage of charges without 

litigation—either by the Commission or 

by employees. The Commission aims to 

accomplish this with these revisions by 

implementing requirements regarding 

the information that it must provide in 

preparation for and during conciliation, 

particularly with respect to its findings 

and demands. At their core, they ensure 

the Commission will provide certain 

information—the essential facts and the 

law supporting the claim, findings, and 

demands. Compliance with these 

requirements should put beyond 

reasonable dispute in most, if not all, 

cases the Commission’s compliance 

with Mach Mining. More important, it 

will facilitate as a matter of course in all 

cases respondents’ identification of the 

specific discriminatory practices at 

issue. This will directly facilitate 

voluntary prospective remedial action 

regarding the policy or practice, 

notwithstanding respondents’ position 

during conciliation or subsequent 

litigation. And by eliminating such 

discriminatory practices without 

litigation, the Commission accomplishes 

its primary statutory objective in 

conciliation to purge unlawful 

discrimination in employment. 

Moreover, by providing information 

regarding the basis for the Commission’s 


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2 In many instances, these previous disclosures 

will satisfy the Commission’s disclosure 

requirements under the final rule because the rule 

only requires disclosure of the information if the 

Commission has not already done so. 

finding and demands, the respondent 

will be able to more effectively assess its 

potential liability. This increased 

information will enhance the 

conciliation process for all parties to 

conciliation and may focus discussions 

in a way more likely to achieve a 

meeting of the minds or, alternatively, 

clearly distill areas of disagreement that 

may aid the Commission in subsequent 

litigation. 

The Commission recognizes that 

currently, certain information is 

generally provided to employers prior to 

a cause finding and in the Letter of 

Determination, all of which occur prior 

to conciliation. The Commission also 

recognizes that the respondent is 

generally the holder of its own records 

and information. This rule is not meant 

to replace those disclosures or duplicate 

them,2 but instead to ensure that the 

information the Commission provides 

about its position and findings enables 

respondents to properly evaluate their 

potential liability and the Commission’s 

settlement offer, and ultimately, result 

in respondents becoming more likely to 

participate and resolve the charge. 

The comment period for the NPRM 

closed on November 9, 2020. The 

Commission received a total of 58 

comments in response to the NPRM—15 

in favor, 33 in opposition, and 10 nonresponsive. Commenters on both sides 

of the proposal included organizations 

and individuals. The Commission also 

received a comment from members of 

Congress in support of the rule. Former 

officials and employees of the 

Commission also submitted comments 

against the proposed changes. At least 

one commenter submitted two 

comments. 

As explained in greater detail below, 

the Commission has carefully 

considered each of the comments it 

received. Based on these submissions, 

the Commission is publishing this final 

rule that, while similar to the proposed 

rule in most respects, nevertheless 

contains certain modifications, which 

are explained below. 

Comments in Support of Proposal and 

the Commission’s Responses 

Several commenters agreed that there 

are challenges in the Commission’s 

conciliation practices and procedures as 

recounted in the proposed rule. 

Specifically, they echoed and illustrated 

the ways in which the Commission’s 

procedures and practices complicated 

and prevented the communication 

necessary to conciliate charges and stop 

employment practices that the 

Commission has determined after an 

investigation to be discriminatory. 

Commenters highlighted illustrative 

examples of conciliations in which the 

commenters allege the Commission 

issued large demands, with minimal 

explanation and insufficient support for 

the Commission’s position. The 

commenters noted that in these and 

similar circumstances, the 

Commission’s communications did not 

describe the act or practice alleged to be 

discriminatory, why it violated federal 

law, and which person or class was 

unlawfully harmed. 42 U.S.C. 2000e– 

5(b); Mach Mining, 575 U.S. at 488. The 

Commission agrees that without this 

basic information, the respondent may 

not be able to evaluate the merit of the 

Commission’s position or demand, 

weigh the demand against the risk and 

expense of possible litigation and take 

directed action to ameliorate the 

problem. Even more important, a 

demand without commensurate support 

does not ‘‘inform the employer about 

the specific allegations’’ in a way that 

‘‘endeavors to achieve voluntary 

compliance.’’ Mach Mining, 575 U.S. at 

488, 494. Indeed, it is axiomatic that a 

party cannot adequately evaluate a 

claim or related demand without 

understanding the factual and legal 

basis for it. A lack of information can 

also impact the employer’s ability to 

evaluate its practices or provide 

potentially helpful information to the 

Commission that may facilitate 

conciliation or, at a minimum, inform 

the Commission’s subsequent litigation 

assessment. In the commenters’ view, 

this short-circuits the conciliation 

process before meaningful 

communication between the parties 

even commences. Without this 

information, a respondent cannot 

engage in this analysis and determine 

whether the offer presented by the 

EEOC is the best way to resolve the case 

under the circumstances. 

Commenters emphasized the 

importance of a thorough understanding 

of the opposing party’s position during 

discussions aimed at reaching a 

resolution prior to litigation. As one 

commenter put it, the lack of factual and 

legal support for a demand or response 

leaves both the Commission and the 

employer with an ‘‘asymmetrical view’’ 

of their own position and a lack of 

understanding of the other side’s 

position. One law firm asserted that the 

ubiquity of the EEOC’s ‘‘no facts’’ 

strategy during conciliation indicates it 

is deeply engrained in the agency’s 

culture. In the commenter’s experience, 

the dearth of factual and legal support 

for demands frequently implies 

weaknesses in the underlying 

reasonable cause determinations. As 

another law firm put it: ‘‘[w]hen the 

conciliation process becomes simply a 

series of demands, unsupported by 

relevant facts or legal authority, it is at 

best a futile and resource-consuming 

exercise, and at worst, an attempt to 

bring the weight of the federal 

government to bear on and extort an 

employer with little proof of 

wrongdoing.’’ 

Members of Congress who submitted 

comments highlighted that on several 

occasions they had identified issues 

with the Commission’s conciliation 

process; these issues were distinct from 

the examples provided by law firm and 

industry commenters. 

The commenters in favor of the 

proposed rule agreed that the 

Commission’s proposal addresses the 

principal challenges in its conciliation 

procedures and processes in ways that 

are likely to result in more meaningful 

conciliations and, ultimately, more 

agreements. Specifically, commenters 

stated that the proposed changes would 

‘‘entice’’ more respondents to 

participate in conciliation. Commenters 

also noted that establishing these 

requirements through regulations, as 

opposed to through sub-regulatory 

guidance or employee training, would 

bring more certainty to the conciliation 

process. As articulated by the Ranking 

Member of the House Committee on 

Education and Labor, ‘‘[t]hese 

commonsense requirements will 

increase transparency in the 

conciliation process and facilitate 

quicker resolutions of charges as the 

employer will have more information 

about the underlying charge, EEOC’s 

position, and the employer’s legal 

obligations.’’ 

Commission Response: The 

Commission recognizes the importance 

of an effective conciliation program in 

its mission to identify and eradicate 

discriminatory employment actions and 

practices and, in so doing, obtain relief 

for its victims without the delay, 

expense, and uncertainty of possible 

litigation. The Commission also 

appreciates the place of primacy that 

conciliation holds in Title VII’s 

statutory framework. By providing 

information concerning the factual and 

legal bases for its position for charges 

where it has found reasonable cause, the 

Commission believes it places itself in 

a stronger position to achieve 

conciliation in more cases—eliminating 

a greater number of unlawful 

employment practices and obtaining 

relief for victims of discrimination 


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earlier than it can through litigation. By 

providing such information, the 

Commission can alleviate criticisms that 

demands are excessive or not supported 

by the evidence and the law. Providing 

this information should facilitate 

respondents’ identification and redress 

of discriminatory practices regardless of 

the outcome of conciliation. Provided 

with this information, the Commission 

believes that a greater number of 

respondents will be more likely to 

engage in the conciliation process and 

comply voluntarily to resolve the 

charge. And by employing its revised 

conciliation procedures, the 

Commission will satisfy the 

requirements of 42 U.S.C. 2000e–5(b), as 

elucidated in Mach Mining. The 

Commission hopes that this final rule 

will reduce collateral attacks on the 

conciliation process during Commission 

litigation. In the event of such a 

challenge, the Commission will be able 

to demonstrate that it has met the 

conciliation requirements of the statute 

by submitting an affidavit stating that it 

has taken the required steps. See Mach 

Mining, 575 U.S. at 494–95. Ultimately, 

the Commission has concluded that the 

final rule will improve its ability to 

carry out in more cases its statutory 

mandate to eliminate discriminatory 

employment practices and achieve relief 

for workers ‘‘far more quickly than 

could litigation proceeding at its often 

ponderous pace.’’ Ford Motor Co., 458 

U.S. at 228. 

As noted above, by improving the 

Commission’s effectiveness to carry out 

its conciliation responsibilities, the final 

rule also affords considerable benefits to 

charging parties. As the EEOC is only 

able to litigate a small fraction of cases 

that fail conciliation, in most cases 

where conciliation fails, workers must 

fend for themselves in court to obtain 

relief. This means that charging parties 

must file and litigate their own lawsuits 

to secure any relief. Many choose not to 

sue. And, as several commenters noted, 

those that decide to seek legal action 

may be in the position of having to 

litigate without counsel. Even those 

who obtain counsel frequently fail to 

obtain significant relief and, if they 

prevail, may wait years for discovery, 

motions, trial, and appeals to conclude. 

By resolving more cases through 

conciliation, more victims of 

discrimination will obtain relief than 

would have otherwise and even the 

ones that would have obtained relief 

through litigation eventually, will 

receive relief more quickly, without 

incurring the expense and risk of 

litigation. 

Suggestions by Commenters: Several 

commenters who supported the 

proposed rule also suggested what they 

saw as improvements. The Commission 

addresses each of the suggestions below: 

1. Extend the time period by which 

respondents must respond to the 

Commission’s conciliation offer beyond 

fourteen days: Several commenters 

stated that the Commission should give 

respondents more than 14 days to 

respond, especially in certain complex 

and systemic cases. 

Commission response: The 

Commission declines to change the 

language or the requirement as it was 

originally proposed in sections 

1601.24(d)(5) and 1626.12(b)(5) because 

the Commission concludes that these 

sections contain sufficient flexibility to 

allow longer response periods in 

appropriate cases. The proposed rule 

stated that respondents will be provided 

‘‘at least 14 days.’’ There will certainly 

be cases where the Commission extends 

this period beyond 14 days, and the 

language allows the Commission to 

make this determination on a case-bycase basis. As a result, the Commission 

leaves unchanged the proposed 

language in the final rule. 

2. Allow anonymity in circumstances 

only where charging parties or aggrieved 

individuals are at risk of retaliation: 

Several commenters urged the 

Commission to limit the charging 

parties or aggrieved individuals to 

whom it grants anonymity in 

conciliation under sections 

1604.24(d)(1) and 1626.12(b)(1). 

Specifically, commenters suggested that 

the Commission grant anonymity only 

to current employees of the respondent 

because they, unlike former employees 

or failed applicants, are at risk of 

retaliation. Commenters indicated that it 

is often difficult to respond to the 

Commission’s findings of 

discrimination, particularly in 

individual cases, when they do not 

know the identity or circumstances of a 

particular victim. Although conciliation 

is not intended to provide an 

opportunity to challenge the cause 

finding, one commenter noted that that 

a respondent could face an allegation 

that it did not hire an individual 

because of her race and that if the 

identity of the individual is withheld, it 

would not be able to determine if there 

were other reasons the individual was 

not hired, such as failing to show up for 

her interview. 

Commission response: The 

Commission acknowledges that it in 

some cases it may be difficult for 

respondents to evaluate the merits of the 

Commission’s conciliation proposal if 

the respondent is unaware of the 

identity of the victim(s). Respondents 

do receive the name of the charging 

parties when they are notified of the 

charge soon after it is filed. Some 

commenters suggest that anonymity be 

limited to only current employees 

recognizing their concern about 

potential retaliation. However, the 

Supreme Court has noted that former, 

current, and prospective employees are 

protected from retaliation. See Robinson 

v. Shell Oil Co., 519 U.S. 337, 345–46 

(1997). Therefore, the Commission does 

not adopt this proposed change. 

3. Requiring the charging party to 

participate in conciliation: One 

commenter suggested that the charging 

party should be required to participate 

in the conciliation, similar to a 

mediation. 

Commission response: The 

Commission declines to adopt this 

proposed change. In conciliation, the 

Commission does not merely serve as 

the advocate of the charging party or 

aggrieved individual. Rather, the 

Commission’s core objective is to 

vindicate the public’s interest and 

eliminate discriminatory employment 

policies and practices. In some cases, 

but not all, this will achieve relief for 

the charging party as well as other 

workers and potential employees. Given 

these varied interests, conciliations take 

different forms and the charging party’s 

participation varies from case to case for 

a myriad of reasons. The Commission 

believes it is important to the 

Commission’s ability to achieve the 

broader purposes of conciliation to 

preserve its flexibility regarding the 

involvement of the charging party in 

each case. See EEOC v. Waffle House, 

Inc., 534 U.S. 279, 291 (2002) (‘‘The 

statute clearly makes the EEOC the 

master of its own case and confers on 

the agency the authority to evaluate the 

strength of the public interest at 

stake.’’). As a result, the Commission 

declines to mandate the charging party’s 

participation in every instance. 

4. Commission must respond to all 

counteroffers and affirmative defenses: 

Multiple commenters stated that the 

rule should require the Commission to 

respond to all counteroffers a 

respondent makes and that the 

Commission must respond to all 

affirmative defenses that are raised 

during conciliation. 

Commission response: Conciliation is, 

first and foremost, the means Congress 

‘‘preferred’’ the Commission to use to 

target and eliminate discrimination in 

employment. Indeed, Congress did not 

afford the Commission authority to 

commence litigation until 1972. 

Conciliation is not a rigid, structured, 

bargaining framework. As the Supreme 

Court made clear in Mach Mining, 

Congress afforded the Commission wide 


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latitude to pursue voluntary compliance 

with a statutory provision, ‘‘every 

aspect’’ of which ‘‘smacks of 

flexibility.’’ Mach Mining, 575 U.S. at 

492; 42 U.S.C. 2000e–5(b). And like the 

Supreme Court in that case, the 

Commission declines to infuse the 

conciliation process with a rigid code of 

rules that handcuffs the agency by 

limiting the broad strategic leeway Title 

VII affords to it to execute its mission. 

See Mach Mining, 575 U.S. at 492 

(rejecting the petitioner’s ‘‘proposed 

code of conduct’’ and ‘‘bargaining 

checklist’’ because ‘‘Congress left to the 

EEOC such strategic questions about 

whether to make a bare-minimum offer, 

to lay all its cards on the table, or to 

respond to each of an employer’s 

counter-offers, however far afield.’’). 

The Commission meets its statutory 

obligation by providing the basic factual 

and legal information for the respondent 

to evaluate the claim and identify the 

discriminatory action or practice. But 

once this is accomplished, the 

Commission retains ‘‘discretion over the 

pace and duration of conciliation 

efforts, the plasticity or firmness of its 

negotiating positions, and the content of 

its demands for relief.’’ Id. The 

Commission declines to adopt such 

proposals because they damage the 

flexibility critical to its ability to 

conciliate claims without any 

concomitant benefit. 

5. Disclosures should be made in 

writing: In the NPRM, the Commission 

solicited comments on whether the 

disclosures described in the proposed 

rule should be made in writing. 85 FR 

at 64081. Several commenters advocated 

written disclosures in order to ensure 

clarity. Significantly, one commenter 

contended that written disclosure of all 

material should be required so that all 

parties have a complete and 

unambiguous understanding of the 

Commission’s position. Another 

commenter explained that written 

disclosures are more effective than mere 

oral exchanges in the negotiation 

process. This commenter noted that if 

the parties are required to communicate 

and exchange information in writing, it 

is less likely that the parties will be 

unclear as to the other parties’ positions 

and information exchanged during the 

process. 

Commission response: The 

Commission agrees that written 

disclosures help ensure clarity 

throughout the conciliation process. The 

Commission further agrees that 

providing information in writing will 

ensure full transparency of the 

conciliation process. Exchanging 

information in writing, where 

appropriate, eliminates confusion and 

promotes more accurate and complete 

information regarding the relevant 

issues. For these reasons, the 

Commission will keep the ‘‘written’’ 

reference that was in the NRPM and 

clarify that the other disclosures be in 

writing. However, for sections 

1601.24(d)(3) and 1626.12(b)(3), the 

requirement that the disclosure be in 

writing shall apply only to the initial 

conciliation proposal made by the 

EEOC. In order to preserve the 

Commission’s flexibility in conciliation, 

in recognition of the fact that demands 

are made at various times in a sequence 

of offers and counteroffers, and in order 

to avoid the increased burden on its 

staff to prepare a written explanation to 

accompany each change of position, the 

Commission has determined that 

disclosures explaining the basis for its 

requests for relief for subsequent offers 

and counteroffers need not be in writing 

and may be issued orally. 

6. Mediators should handle 

conciliation, not investigators: One 

commenter urged the Commission to 

assign mediators to handle conciliations 

instead of investigators. 

Commission response: The 

Commission disagrees with this 

comment and shall not adopt it. As the 

Commission has maintained throughout 

this process, it is not looking 

fundamentally to change its conciliation 

structure with this rule. Investigators 

remain in the best position to handle 

conciliation discussions as they are 

familiar with the case and the issues 

surrounding it. Furthermore, the process 

and purpose of conciliation is different 

than mediation. Accordingly, the 

Commission rejects this proposal. 

7. The Commission should disclose 

additional information: A number of 

commenters stated that the Commission 

should make certain disclosures under 

sections 1601.24(d)(1), such as the 

identity of harassers or at-fault 

supervisors and potential class sizes. 

Commission response: The 

Commission agrees that these 

disclosures will allow respondents to 

better assess their potential liability by 

identifying discriminatory practices, 

policies, and actions, and as a result 

advance the Commission’s conciliation 

efforts to identify and eliminate 

discriminatory employment practices. 

However, the identities of harassers or 

supervisors may not be known at the 

time of conciliation. Similarly, 

sometimes class size may not have been 

fully determined. Accordingly, the final 

rule makes the disclosures references in 

the last two sentences of § 1601.24(d)(1) 

mandatory, only if known to the 

Commission. 

8. Establish a ‘‘good faith’’ standard: 

A few commenters requested that the 

Commission impose a ‘‘good faith’’ 

standard on itself during conciliation. 

Commission Response: At the outset, 

the Commission rejects the notion that 

it does not undertake its statutory 

responsibilities in good faith. All 

Commission employees are expected to 

approach conciliation in good faith and 

endeavor to achieve conciliation and its 

purposes within the framework of the 

Commission’s procedures. In those 

situations where a respondent may 

disagree with the Commission’s strategy 

in a particular case or a hard line taken 

in discussions does not mean that 

Commission personnel are not acting in 

good faith. The Commission declines to 

impose upon itself a standard as 

suggested that could open a door to 

collateral litigation. For these reasons 

the Commission declines to adopt such 

a standard, preferring the 

straightforward approach as updated by 

the final rule. 

9. Alter the privilege standard: 

Several commenters requested that the 

Commission revise provisions 

concerning privilege contained in 

sections 1601.24(e) and 1626.12(c). 

Specifically, these commenters argued 

that the Commission should preclude 

itself from claiming privilege on the 

underlying facts it gathers and limiting 

the discretion of Commission employees 

in identifying privileged material. 

Commission response: The 

Commission declines to make specific 

statements regarding privilege beyond 

that which is set forth in the proposed 

rule. The Commission will continue to 

claim all privileges to which it is 

entitled by law. The Commission 

declines to amend the rule to outline 

specific criteria for employees to follow 

concerning assertions of privilege. 

10. Confidentiality of conciliations: 

Multiple commenters asked that the 

Commission prohibit itself from seeking 

publication of the conciliation, through 

terms in the conciliation agreement. 

One commenter explains that, in their 

experience, it is common for the 

Commission to require, as a condition of 

successful conciliation, that a 

respondent agree to waive 

confidentiality and allow the 

Commission to issue a public press 

release announcing some or all of the 

terms of the parties’ agreement. The 

commenter contends that this serves not 

only to deter employers from entering 

conciliation at the outset but can serve 

to lead a case that might otherwise be 

resolved via conciliation to instead fail 

to be resolved in conciliation. 

Commission response: The 

Commission will not make this change. 


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3Similarly, Section 6(a) of Executive Order 12866 

states that in ‘‘most cases’’ the comment period 

should be ‘‘not less than 60 days.’’ 

Section 706 of Title VII clearly requires 

approval to disclose information 

concerning conciliation. 42 U.S.C. 

2000e–5(b) (‘‘Nothing said or done 

during and as a part of such informal 

endeavors may be made public by the 

Commission, its officers or employees, 

or used as evidence in a subsequent 

proceeding without the written consent 

of the persons concerned.’’). As the 

Commission has explained, conciliation 

is a ‘‘favored’’ method to identify and 

eliminate illegal discrimination in 

employment. Publication of conciliation 

results—or certain elements of those 

results—often furthers this objective. 

There are valid reasons for the 

Commission to seek approval to 

publicize certain successful agreements 

and the Commission will continue to do 

so where appropriate. 

11. Limit disclosure of individual’s 

information to another aggrieved 

individual: Some commenters were 

concerned that sections 1601.24(f) and 

1626.12(d) would result in disclosure of 

information about other victims to the 

charging party or to other aggrieved 

individuals that may violate a victim’s 

privacy. 

Commission response: The 

Commission agrees with this concern 

and has included language in the rule 

that information may be shared with 

charging parties ‘‘except for information 

about another charging party or 

individual’’ to ensure that information 

about an individual is not disclosed to 

another charging party or aggrieved 

individual. Although objected to by 

some commenters who opposed the 

rule, the Commission will not be taking 

out the ‘‘upon request’’ language 

regarding disclosures to charging 

parties. It is important for the 

Commission to maintain its discretion 

and flexibility with how it engages with 

aggrieved individuals during the 

conciliation process. Moreover, the 

burden on staff to provide this 

information to all identified aggrieved 

parties would be substantial in class 

cases. 

12. Commission should always make 

initial offer: One commenter advocated 

a requirement that the Commission 

always make the initial offer in 

conciliation. 

Commission Response: The 

Commission will not add this 

requirement to the final rule. Although 

the Commission agrees that often it is 

appropriate for the Commission to make 

the initial offer in conciliation, this is 

not always the case. There are 

circumstances in which a respondent 

may prefer to make the initial offer or 

where such an outcome is otherwise 

appropriate or more likely to secure 

terms ‘‘acceptable to the Commission.’’ 

42 U.S.C. 2000e–5(f)(1). The imposition 

of such a procedural requirement could 

operate to impede the Commission’s 

ability to execute this critical statutory 

obligation to eliminate unlawful 

discriminatory practices. Therefore, the 

Commission declines to make this 

change. 

13. Provide more details to support 

demands for monetary damages: Several 

commenters contend that the 

Commission should require more 

explanation for the basis of its damages 

requested in conciliation. One 

commenter argues that the Commission 

will often take the position with respect 

to compensatory or punitive damages 

that a charging party is entitled to the 

maximum statutory cap on 

compensatory and punitive damages 

from the start. Consequentially, the 

commenter urges the Commission to 

make clear that an initial offer should 

not routinely rely on the maximum 

statutory damages cap in an attempt to 

leverage a higher final settlement. 

Likewise, another commenter echoes 

this sentiment and states that the final 

rule should provide that merely reciting 

the statutory maximums for 

compensatory or punitive damages does 

not satisfy the rule’s requirements. 

Commission Response: The 

Commission believes that the 

descriptions provided in sections 

1601.24(d)(3) and 1626.12(b)(3) in the 

NPRM are sufficient because the 

language covers all requests for damages 

and relief, including punitive damages. 

Under the final rule, whatever the 

Commission’s offer—including if it is 

the statutory cap—must be accompanied 

by an explanation based on the facts of 

the case. Furthermore, the commenters’ 

suggestions risk taking away the 

flexibility that the Commission is 

seeking to maintain while also 

increasing transparency in conciliation. 

14. Add language about providing 

funds to third parties: One commenter 

suggested adding language to the rule 

that would expressly encourage terms 

allowing distribution of excess 

settlement funds to third parties, such 

as charities. 

Commission response: The 

Commission declines to add this 

provision. While these type of clauses 

may be appropriate in certain 

circumstances, the Commission is aware 

that they have recently been subject to 

greater scrutiny. For these reasons, and 

to ensure maximum flexibility in 

conciliation and avoid unnecessary 

encumbrances on its discretion, the 

Commission concludes that it would be 

inappropriate to include such a 

provision in its regulations. See Frank v. 

Gaos, 139 S. Ct. 1041 (2019). 

Comments Opposing the Rule Change 

and the Commission’s Responses 

The EEOC also received comments 

opposing the rule change. These 

comments included concerns about the 

length of the comment period, 

particularly during the COVID–19 

pandemic; whether the rule was 

premature in light of a pilot program; 

whether the rule favored employers over 

workers; whether the rule would 

undermine the Commission’s ability to 

prevent and remedy discrimination; the 

rule’s potential economic impact; the 

rule’s relationship to the Mach Mining 

case; and whether the Commission 

sufficiently justified the rule’s impact 

on its enforcement mission. 

Comments Regarding the Length of 

the Comment Period: Several 

commenters claimed that a 30-day 

comment period was too short and 

asked that it be extended, some citing 

Executive Order 13563 and arguing that 

it provides comment periods should 

generally be at least 60 days. Others 

suggested that a short time period 

deprives the public of a sufficient 

opportunity to weigh in, citing the 

COVID–19 pandemic. 

Commission Response: The 

Administrative Procedure Act (APA) 

requires that agencies give ‘‘interested 

persons an opportunity to participate’’ 

in rulemaking, but it does not establish 

specific time periods in which a rule 

must be open for public comment. 5 

U.S.C. 553(c). Neither does Executive 

Order 13563, which provides that an 

agency ‘‘afford the public a meaningful 

opportunity to comment through the 

internet on a proposed regulation, with 

a comment period that should generally 

be at least 60 days.’’ The language of the 

APA and Executive Order 13563 

anticipates that some rules are extensive 

and complex, running scores or 

hundreds of pages in the Federal 

Register; others are far less so. As a 

result, the ‘‘60 days’’ benchmark is 

neither mandatory nor necessarily 

appropriate for all rules. Here, as with 

all EEOC rulemakings, the Office of 

Management and Budget reviewed the 

NPRM before publication and agreed 

that the 30-day comment period was 

appropriate in light of the contents of 

the proposed rule.3 The comment 

period must afford the public a 

meaningful opportunity to comment. 

This has occurred. The depth and 

breadth of the substantive comments the 


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4See https://www.eeoc.gov/meetings/meetingaugust-18-2020-discussion-notice-proposedrulemaking-conciliation. 

5Concurrently with the pilot, the agency 

conducted refresher training on conciliation 

practices. In addition to training on the pilot, the 

refresher training included an emphasis on the predetermination interview (PDI) requirement, which 

is conducted before the Commission issues its 

reasonable cause finding. While some overlap may 

occur between what employees are already 

expected to disclose during the PDI and what this 

final rule ensures is disclosed during conciliation, 

the pilot did not require any new disclosures. 

Commission received evidences that 

interested persons had a meaningful 

opportunity to comment. 

In addition, the Commission 

conducted a meeting that called 

attention to the proposed rule. 

Specifically, on August 18, 2020, the 

Commission held a public meeting to 

discuss and vote on the NPRM. Notice 

of the meeting was published in the 

Federal Register which identified the 

topic of the meeting. The public was 

invited to listen to the meeting live. 

Press reports before and after the 

meeting reported the discussion of the 

proposed rule. The transcript of the 

meeting was timely uploaded on to the 

EEOC website.4 As a result, the public 

had notice of this proposed rule from 

several sources and ample opportunity 

to research and evaluate the proposal, 

beginning nearly two months before the 

NPRM was published in the Federal 

Register. The Commission concludes 

that the length of the comment period 

on this rule was appropriate and 

declines to extend it. 

Allegation that the Rule is Premature 

Because of the Ongoing Pilot Program: 

Some commenters contend that the 

NPRM fails to acknowledge the 

Commission’s ongoing pilot program 

regarding conciliation procedures and 

that the Commission should wait to 

finalize the rule until after the pilot has 

concluded and been studied. Others 

argued that the public too should be 

given the opportunity to study the pilot 

and incorporate those efforts in further 

comments regarding this rule. Some 

commenters expressed concern that the 

results of the pilot program could be at 

odds with the rule, suggesting the 

Commission should delay the final rule 

to ensure harmony with the results of 

the pilot. 

Commission response: In May of 

2020, the EEOC launched a six-month 

pilot program. The pilot was extended 

in November 2020. This pilot made only 

a single change to the conciliation 

process.5 Specifically, the pilot added a 

requirement that conciliation offers of 

certain amounts be approved by the 

certain levels of management prior to 

being shared with respondents. This 

requirement adds additional oversight 

by management to ensure that 

conciliation proposals are in line with 

the facts of the case. The pilot program 

is not related to this rulemaking; it 

addresses a different aspect of 

conciliation. It does not incorporate or 

add any of the changes to the 

conciliation procedures that were 

proposed or are being implemented in 

this final rule. Given the lack of overlap 

or connection between the pilot 

program and this rule, the results of the 

pilot are not relevant to this rulemaking 

and there is no reason to delay the latter 

so that the Commission or the public 

may study the former. As this rule is 

neither related to nor dependent on the 

pilot or its outcome, the Commission 

declines the delay sought by these 

commenters. 

Comments that the Rule Primarily 

Benefits Employers and Respondents: 

Some commenters faulted the rule for 

requiring the Commission to disclose 

certain information to respondent 

automatically, while only providing the 

information to charging parties and 

aggrieved individuals upon request. 

Others raised concerns that the new 

rules could turn the conciliation process 

into ‘‘quasi-litigation’’ by making 

conciliation more formal and could 

generate collateral litigation. Still others 

expressed concern that the disclosures 

contemplated could potentially reveal 

the Commission’s litigation strategy and 

inadvertently assist respondents in 

litigation. 

Commission Response: The 

Commission appreciates the concerns 

expressed regarding the circumstances 

under which disclosures are made to 

respondents versus charging parties and 

aggrieved individuals. However, 

because the Commission is mindful of 

the need to maintain flexibility with 

respect to how staff engage with 

charging parties and aggrieved 

individuals, and recognizes the burden 

disclosure would impose upon staff, the 

Commission will retain the language 

‘‘upon request’’. 

The Commission is implementing the 

final rule to improve conciliation. The 

final rule should enhance the 

Commission’s effectiveness in executing 

its statutory mandate to identify and 

eliminate discriminatory employment 

practices and obtain appropriate relief 

for victims without litigation, as 

Congress preferred. The rule 

accomplishes this end by requiring that 

the Commission provide certain basic 

information—the facts and law in 

support of the claim and who or what 

class of victims was affected by the 

allegedly discriminatory practice—that 

it already develops. By providing this 

information, respondents can better 

identify and correct the discriminatory 

action, policy, or practice. By 

facilitating such a result without 

litigation, the Commission achieves its 

primary goal of ending the 

discriminatory practice and potentially 

impacting other employees who may 

have been affected by the practice. As a 

result, the primary beneficiaries of more 

effective conciliations are victims and 

potential victims of discrimination, as 

well as the public. The Commission 

intends for these improvements to 

encourage more respondents to engage 

in the process, thus increasing the 

likelihood of voluntary compliance, and 

successful conciliations. These results 

should also provide benefits to 

discrimination victims by obtaining 

relief far sooner than would be possible 

in litigation. Without successful 

conciliation, employees and applicants 

are, in most cases, left to fend for 

themselves to try and obtain relief 

through litigation. For these reasons, the 

Commission disagrees with 

commenters’ assertion that the final rule 

primarily benefits employers. 

Nothing in the final rule is intended 

to create new causes of action for 

respondents or others; to the contrary, 

the rule is designed to alleviate 

concerns that the Commission has failed 

to meet its conciliation obligation, as 

explained in Mach Mining. Should the 

Commission’s conciliation efforts be 

challenged in litigation, the final rule 

provides a framework that allows the 

Commission to easily demonstrate it has 

met the requirements laid out in Mach 

Mining, by simply affirming through an 

affidavit that it followed the procedures 

described in the statute. Thus, rather 

than raising the likelihood of collateral 

litigation over conciliation, the final 

rule will have the opposite effect by 

providing a guidepost for the 

Commission to follow in meeting its 

conciliation obligations. Furthermore, as 

the Commission pointed out in the 

NPRM, the confidentiality provisions of 

Title VII are inherent barriers to a 

probing judicial review of conciliation 

and protects the information disclosed. 

See 85 FR at 64080–81. For these 

reasons, the Commission has 

determined that this final rule will not 

unnecessarily open its conciliation 

process to judicial review or collateral 

attacks from employers. 

The Commission appreciates the 

concerns expressed regarding the 

circumstances under which disclosures 

are made to respondents versus charging 

parties and aggrieved individuals. 

However, because the Commission is 

mindful of the need to maintain 

flexibility regarding how staff engage 


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with charging parties and aggrieved 

individuals, and in recognition of the 

burden disclosure would impose upon 

staff, the Commission will retain the 

language ‘‘upon request’’ as it relates to 

charging parties and aggrieved 

individuals. As noted above, the level of 

engagement by a charging party or 

aggrieved individual can vary from 

conciliation to conciliation. 

Furthermore, as also noted above, the 

Commission must also focus on the 

public interest when attempting to 

resolve the case through conciliation. 

The rule is designed to improve the 

conciliation process by making it more 

meaningful and effective. Adequate 

information must be provided to the 

respondent to allow it to address the 

discriminatory conduct as well as assess 

its potential liability. The rule protects 

disclosure of privileged information, 

which will protect any confidential 

attorney work product related to 

litigation strategy. 

Concerns That the Rule Would 

Undermine the Commission’s Ability to 

Prevent and Remedy Discrimination and 

Would Harm Workers: Some 

commenters expressed concern that 

compliance with this rule would divert 

resources that otherwise would be used 

to directly serve charging parties. For 

example, some commenters stated that 

the new rule would cause the 

Commission to initiate fewer actions in 

court or somehow disincentivize the 

Commission from issuing cause 

findings. There was also concern that 

the disclosures required by the 

proposed rule could lead to retaliation 

against workers. 

Commission response: The law 

requires that the Commission provide 

information to respondents regarding 

‘‘the alleged unlawful employment 

practice.’’ Mach Mining, 575 U.S. at 488. 

The Commission has determined that, at 

a minimum, this must include factual 

and legal information sufficient to 

support its reasonable cause finding and 

any demand that it has made. This 

affords a respondent with basic 

information about the claim, such as the 

action or practice that the Commission 

has determined to be discriminatory in 

violation of Title VII, and the person or 

categories of persons it has harmed. Id. 

Instead of being ‘‘extensive’’ or 

‘‘burdensome,’’ the disclosures required 

by the final rule are straight forward. 

The Commission’s employees already 

engage in the analysis and work 

outlined in the rule such that 

compliance with the rule will not 

‘‘divert’’ resources away from services 

currently provided to the victims of 

discrimination. In every case where 

there is a finding of discrimination, the 

Commission develops facts, identifies 

aggrieved parties, evaluates the scope 

and potential of class or systemic 

allegations, analyzes legal theories, and 

calculates potential damages. The rule 

requires that some of this information be 

communicated to respondent so that it 

may evaluate the claim to be 

conciliated. In communicating this 

information, the Commission will 

support its conciliation demand and 

reinforce its reasonable cause finding, 

thereby increasing the likelihood of 

voluntary resolution of charges, just as 

Congress preferred. 

However, in recognition of the 

complications that could arise with 

respect to conciliations already in 

progress, this rule will only apply to 

conciliations for charges for which a 

Letter of Determination invitation to 

engage in conciliation has been sent to 

respondent on or after the effective date. 

Concerns that the rule will cause 

fewer cases in which reasonable cause 

is found are inconsistent with the 

requirements of the final rule. The 

Commission’s mission in conciliation is 

to identify and designate for elimination 

unlawful discriminatory employment 

practices, as well as to obtain relief for 

victims of discrimination. Whenever the 

investigation of a charge reveals that 

unlawful discrimination has likely 

occurred, the Commission will issue a 

finding of reasonable cause. This rule 

merely requires that certain basic 

information regarding such a charge be 

provided to the respondent. The 

Commission is confident that this 

information will support its findings of 

reasonable cause and convey the 

strength of the Commission’s 

determination. 

The Commission also rejects the 

assertion that the final rule will 

somehow frustrate its mission. The 

Commission’s mission is to prevent and 

remedy unlawful employment 

discrimination. While litigation is a 

useful tool in achieving that end, it is 

not the exclusive means to achieve that 

result. Indeed, as noted above, Congress 

favored conciliation over litigation as a 

means to eliminate discriminatory 

employment practices. Furthermore, 

there is no reason to believe that the 

new rule will cause Commission 

employees to find reasonable cause in 

fewer cases where such a finding is 

merited pursuant to the facts and the 

law. 

Section 706 of Title VII directs the 

Commission, after it finds reasonable 

cause, to endeavor to eliminate 

discrimination through informal 

methods of conference, conciliation, 

and persuasion. Congress further 

directed that the EEOC could only 

commence a civil action if, and only if, 

conciliation fails. By so doing, Congress 

made it clear that conciliation is the 

preferred method to address 

discrimination. See Mach Mining, 575 

U.S. at 486 (‘‘in pursuing the goal of 

bringing employment discrimination to 

an end, Congress chose ‘cooperation and 

voluntary compliance’ as its preferred 

means’’). This rule advances that choice. 

Commenters’ concerns that 

disclosures could result in retaliation 

against aggrieved parties are misplaced. 

The rule provides protection for all 

workers reasonably susceptible of 

retaliation, which, of course, is 

prohibited by Title VII. The Commission 

will vigorously pursue employers who 

engage in retaliation against employees 

who attempt to vindicate their rights. 

Concerns About Economic Impact: 

Some commenters expressed concern 

that the rule does not take into account 

the negative economic effects of 

discrimination. Others lodged concerns 

that the rule claims economic benefits of 

more conciliations, while ignoring the 

additional costs to the Commission. One 

commenter said the Commission relied 

on ‘‘trickle-down economics’’ to claim 

that cost savings would benefit the 

economy overall. 

Commission response: Concerns that 

the rule does not take into account the 

negative economic effects of 

discrimination are misplaced. The 

Commission is aware of the economic 

effects of unlawful discrimination and 

uses every tool available to it to prevent 

and end unlawful discrimination. 

Conciliation is an important part of that. 

The more cases the Commission 

successfully conciliates, the greater the 

number of unlawful employment 

practices it eliminates and the greater 

number of incidents of discrimination 

are remedied, achieving its statutory 

mission. The Commission believes the 

final rule will lead to greater 

participation and more successful 

conciliations, which will have positive 

economic impacts for employees, 

employers, and the public at large. 

The Commission disagrees with the 

comments that this rule will increase 

the rates of discrimination or allow 

discrimination to go unpunished or 

unaddressed. These comments fail to 

explain how the rule will cause more 

employers to engage in unlawful 

discrimination or to discriminate more 

extensively. To the contrary, this rule 

requires the Commission to provide to 

respondents factual and legal 

information about the claim to be 

conciliated. This will allow the 

respondent to better identify and 

address any underlying policy or 

practice that is discriminatory, even if 


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the respondent elects to contest the 

particular charge or litigate for other 

reasons. And as more such policies and 

practices are identified and eliminated, 

fewer workers will suffer unlawful 

discrimination. 

Concerns That the Rule is 

Inconsistent with Mach Mining and 

Statutory Authority: Some commenters 

argued that the rule is inconsistent with 

the Supreme Court decision in Mach 

Mining, and that because the changes 

are not required by statute or court 

decision the Commission should not 

make them. For example, a number of 

commenters pointed to the language of 

the Mach Mining decision that said Title 

VII’s conciliation provision ‘‘smacks of 

flexibility’’ to argue that the 

Commission’s proposed rule was 

contrary to the Court’s holding. Id. at 

492. Others believe conciliation is 

already successful and fear that these 

additional procedures will introduce an 

unnecessary rigidity that will 

compromise that success. Still others 

suggest that any changes to the 

Commission’s conciliation process 

should be accomplished through 

internal guidance or pilots instead of 

rulemaking. Some commenters also 

claimed that the proposal was 

inconsistent with the language of Title 

VII itself, primarily citing to the use of 

‘‘informal’’ in the statute regarding 

conciliation, and was therefore outside 

of the Commission’s authority. 

Commission response: The 

Commission disagrees that the final rule 

conflicts with Mach Mining. In Mach 

Mining, the Supreme Court began by 

emphasizing the importance of 

conciliation. The Court noted that Title 

VII ‘‘imposes a duty on the EEOC to 

attempt conciliation of a discrimination 

charge prior to filing a lawsuit.’’ Mach 

Mining, 575 U.S. at 486. That 

‘‘obligation,’’ as the Court has held 

repeatedly, is ‘‘mandatory, not 

precatory’’ and ‘‘is a key component of 

the statutory scheme. In pursuing the 

goal of bringing employment 

discrimination to an end, Congress 

chose cooperation and voluntary 

compliance as its preferred means.’’ Id. 

(punctuation and citations omitted). 

When undertaken effectively, 

conciliation should ‘‘end discrimination 

far more quickly than could litigation 

proceeding at its often ponderous pace.’’ 

Ford Motor, 458 U.S. at 228. 

The Court found that Title VII 

‘‘provides certain concrete standards 

pertaining to what that endeavor must 

entail.’’ Mach Mining, 575 U.S. at 488. 

Based on the statutory language 

describing the ‘‘attempt’’ the 

Commission must undertake in 

conciliation, namely ‘‘informal methods 

of conference, conciliation, and 

persuasion,’’ the Court explained that 

‘‘[t]hose specified methods necessarily 

involve communication between 

parties, including the exchange of 

information and views.’’ Id. (citing 42 

U.S.C. 2000e–5(b)). Not only does Title 

VII require ‘‘communication,’’ the Court 

continued, but ‘‘[t]hat communication 

. . . concerns a particular thing: The 

‘alleged unlawful employment 

practice.’ ’’ Id. (citing 42 U.S.C. 2000e– 

5(b)). Specifically, the Court held, in 

order ‘‘to meet the statutory condition, 

[the Commission] must tell the 

employer about the claim—essentially, 

what practice has harmed which person 

or class—and must provide the 

employer with an opportunity to 

discuss the matter in an effort to achieve 

voluntary compliance.’’ Id. If ‘‘the 

Commission does not take those 

specified actions, it has not satisfied 

Title VII’s requirement to attempt 

conciliation.’’ Id. 

Beyond these basic requirements that 

are mandatory in all cases, the Court 

recognized that the Commission enjoys 

broad discretion regarding the way in 

which it conducts conciliations. Id. at 

492. The Court’s statement regarding 

‘‘flexibility’’ cited by commenters was 

in support of ‘‘the latitude Title VII 

gives the Commission to pursue 

voluntary compliance with the law’s 

commands.’’ Id. The Commission is not 

required ‘‘to devote a set amount of time 

or resources’’ or take ‘‘any specific steps 

or measures’’ in conciliation. Id. The 

Commission ‘‘alone decides whether in 

the end to make an agreement or resort 

to litigation,’’ including ‘‘whenever [it 

is] unable to secure terms acceptable to 

the Commission.’’ Id. Once it has 

satisfied its obligations, the Commission 

decides how it will respond to the 

respondent and negotiate and how long 

it will do so. Id. (stating that ‘‘Congress 

left to the EEOC such strategic decisions 

as whether to make a bare-minimum 

offer, to lay all its cards on the table, or 

to respond to each of an employer’s 

counter-offers, however far afield. So 

too Congress granted the EEOC 

discretion over the pace and duration of 

conciliation efforts, the plasticity or 

firmness of its negotiating positions, and 

the content of its demands for relief.’’). 

The Commission’s final rule focuses 

on the requirement that it communicate 

about the ‘‘claim.’’ Id. at 488. The 

Supreme Court held that the 

Commission must, at a minimum, 

communicate to the respondent ‘‘what 

practice has harmed which person or 

class’’ in order to comply with its 

conciliation obligation and that courts 

may review such efforts to ensure 

compliance with Title VII. See id. The 

Commission has determined that the 

final rule comprehensively and 

thoroughly covers the information 

required to make it compliant with 

Mach Mining. If respondents raise 

specious challenges, the Commission 

will be in a strong position to respond 

and, as appropriate, seek sanctions or 

other relief. 

Some commenters point out that the 

rule is not mandated by Mach Mining or 

Title VII. While the requirements set out 

in the rule are not spelled out in either 

the Court’s opinion or the statute, the 

final rule—or any regulation—need not 

be required by the Supreme Court or a 

statute to be appropriate. In fact, both 

Title VII and Mach Mining make clear 

that the Commission ‘‘must tell the 

employer about the claim—essentially, 

what practice has harmed which person 

or class—and must provide the 

employer with an opportunity to 

discuss the matter in an effort to achieve 

voluntary compliance. Mach Mining, 

575 U.S. at 488. The Commission is 

exercising its ‘‘wide latitude’’ and 

‘‘expansive discretion’’ over the 

conciliation process to clarify the 

contents of statutorily required 

communications to respondents in such 

a way that its satisfaction of the 

requirements will be clear. Id. at 488– 

89. The Commission has concluded that 

a recitation and summary of the factual 

and legal basis is a core component of 

any ‘‘communication about the claim’’. 

This would include the identification of 

the action or practice the Commission 

has deemed discriminatory, the reason 

for its conclusion, as well as ‘‘what 

person or class’’ has been unlawfully 

harmed—all so that the respondent 

might be able to bring itself into 

compliance. With this rule the 

Commission is implementing a 

procedure to ensure that it satisfies the 

conciliation requirements of Title VII, as 

elucidated in Mach Mining. 

Some commenters argue that the final 

rule imposes ‘‘rigid’’ or ‘‘extensive’’ 

burdens that will curtail the 

Commission’s ‘‘flexibility’’ and 

‘‘discretion’’. As noted above, the final 

rule requires the Commission to provide 

certain basic information that the 

Commission has concluded will 

categorically satisfy the minimum 

statutory requirements of its 

‘‘communication’’ with respondents. 

Since EEOC staff already perform this 

work, this rule does not require the 

reallocation of resources, and is neither 

extensive nor voluminous. Contrary to 

assertions in many comments, this does 

not weaken the Commission’s position 

in conciliation or litigation in that it 

does not require the Commission to ‘‘lay 

all its cards on the table,’’ ‘‘devote a set 


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6As the Court explained in Mach Mining and the 

Commission noted above, ‘‘Congress left to the 

EEOC such strategic decisions as whether to make 

a bare-minimum offer, to lay all its cards on the 

table, or to respond to each of an employer’s 

counter-offers, however far afield. So too Congress 

granted the EEOC discretion over the pace and 

duration of conciliation efforts, the plasticity or 

firmness of its negotiating positions, and the 

content of its demands for relief.’’ Id. at 492. The 

final rule does nothing to limit or curtail this 

discretion that the Commission has applied for 

decades in pursuit of its mission to eradicate 

unlawful employment discrimination. 

7The need to complete this analysis was cited by 

a commenter opposed to the proposed rule as a 

reason not to move forward. The analysis has been 

completed and is consistent with the changes made 

in the final rule. 

amount of time or resources,’’ or ‘‘take 

any specific steps or measures’’ in any 

conciliation. Once the information has 

been provided, the Commission ‘‘alone 

decides’’ in each case how it will 

respond to a particular respondent, the 

manner and particulars of how it will 

negotiate, and how long it will do so. 

See id. at 492. The Commission ‘‘alone 

decides whether in the end to make an 

agreement or resort to litigation,’’ 

including ‘‘whenever [it is] unable to 

secure terms acceptable to the 

Commission.’’ Id. The final rule ensures 

clear and consistent satisfaction of 

statutory requirements in accordance 

with the Court’s opinion in Mach 

Mining while maintaining the 

Commission’s flexibility to conciliate as 

it deems appropriate.6

While several commenters expressed 

a preference for internal guidance or 

pilot programs rather than a rule, the 

Commission has previously 

implemented Quality Enforcement 

Practices and internal guidance to 

enhance its conciliation efforts, changes 

that resulted in significant training of 

EEOC staff. While these changes 

improved the conciliation process, the 

Commission believes more should be 

done to build on that progress and has 

concluded the structure and 

predictability of a rule is the best way 

to make sure that it is consistently 

satisfying its statutory conciliation 

obligations. As already noted in the 

NPRM and above, less than half the 

cases for which the Commission finds 

reasonable cause are resolved through 

conciliation. The Commission aims to 

achieve more success, including fewer 

cases in which the respondent opts out 

of the process entirely. The 

Commission’s purpose is to enhance the 

processes that will improve its ability to 

remedy unlawful discrimination 

without the need to resort to litigation. 

Some commenters argued that 

conciliation is already successful and 

that the allegedly rigid procedures 

imposed in the final rule are 

unnecessary. One commenter noted that 

following Mach Mining, the amount of 

collateral litigation attacking 

conciliation decreased and the number 

of successful conciliations increased. 

An increase in successful conciliations 

is admirable and the Commission 

recognizes and commends the 

achievements of its employees in the 

conciliation process. Nothing in the 

final rule diminishes or recharacterizes 

that success. To the contrary, the final 

rule aims to build upon that success. As 

noted in the NPRM, from fiscal years 

2016 to 2019, the Commission 

successfully conciliated approximately 

41.23% of those cases in which it found 

reasonable cause. This amounts to only 

a slight increase over the previous four 

fiscal years. Also, during these years, 

employers continued to decline to 

participate in conciliation in 

approximately 33% of such cases. 85 FR 

at 64080. The Commission is concerned 

about the overall rate of successful 

conciliation and that one-third of 

employers refuse to participate in 

conciliation. While there may be many 

reasons why an employer refuses to 

conciliate, at least some of these 

respondents may be motivated, at least 

in part, by the belief that the current 

conciliation process is flawed and not 

worth the effort. The Commission is not 

targeting a specific percentage of 

successful conciliations or employer 

participation. However, the Commission 

is making minor changes that it believes 

will allow it to continue to improve its 

processes and, in so doing, identify and 

eliminate more discriminatory 

employment practices. 

Finally, this final rule is consistent 

with section 706 of Title VII’s use of 

‘‘informal’’ when describing the 

Commission’s efforts to resolve cases 

after finding reasonable cause, and in 

turn, the Commission’s procedural 

rulemaking authority. The 

Commission’s final rule does not 

establish a ‘‘formal’’ process, but instead 

provides basic procedures for 

information sharing that are 

fundamental to any settlement 

discussion. The rule does not establish 

‘‘quasi-litigation’’ with formal rules of 

evidence or rules of procedure that 

would be found in federal court. It 

instead establishes base level 

procedures, but otherwise leaves 

conciliation as an informal process that 

can be adjusted as needed by the case. 

Concerns that the Commission Did 

Not Justify How the Rule Furthers Its 

Enforcement Mission: A few 

commenters contended that the 

Commission had not presented any 

statistics or other data to support its 

belief that the proposed changes would 

make successful conciliation more 

likely or increase respondents’ 

participation in conciliation. In 

addition, one commenter, argued that 

many respondents simply have no 

interest in conciliating, for reasons 

beyond the Commission’s control. In 

support of this position, the commenter 

described instances in which employers 

agreed to resolve a matter after the 

Commission had filed suit for a higher 

amount than what the Commission 

offered in conciliation. Finally, other 

commenters challenged the portions of 

the proposed rule requiring that the 

Commission disclose information 

obtained that caused it to doubt there 

was reasonable cause on a variety of 

grounds. 

Commission response: The 

Commission has explained the reasons 

it believes that the final rule is 

reasonably likely to increase 

participation in conciliation. These 

provisions should encourage greater 

confidence that the communications in 

the conciliation process will include the 

sort of information that the Court 

determined were required. Providing 

such basic factual and legal information 

will encourage more employers to 

participate and will provide them with 

a better understanding of the 

Commission’s position. 

As explained above, there are many 

reasons that respondents elect not to 

conciliate and, as the commenter 

explained, some of these reasons are 

beyond the Commission’s control. A 

decision by a respondent to settle a case 

during litigation for more than what it 

could have settled during conciliation 

actually supports the Commission’s 

reason for the rule change. In these 

situations, a respondent was willing to 

reach an agreement with the 

Commission after it received more 

information about the strength of the 

case against them, which they obtained 

in the litigation process. By better 

explaining its case in conciliation, the 

Commission makes it more likely that 

respondents will understand the risk of 

litigation and be more willing to resolve 

the matter during conciliation, freeing 

the Commission’s resources to litigate 

other more challenging cases. 

The Commission’s Office of 

Enterprise, Data, and Analytics (OEDA) 

has conducted a comprehensive 

analysis of the reasons why 

conciliations fail.7 Their analysis 

identifies two primary reasons charges 

are not resolved through conciliation: 

(1) The respondent’s choice not to 

participate and (2) the parties cannot 

agree on monetary relief. OEDA’s 

statistics also indicate that in cases 


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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations 2983 

8As noted in the NPRM, the language in 

§ 1626.12 is slightly different in some places than 

the language of 1601.24 due to the different 

conciliation language in the ADEA. 85 FR at 64081 

n. 10. This includes the fact that the ADEA does 

not require that conciliation start after a reasonable 

cause finding, so the provisions in 1601.24 that are 

dependent on a reasonable cause finding are not 

found in § 1626.12. See 29 U.S.C. 626(d)(2). A letter 

from former employees of the Commission took 

issue with the Commission using the phrase 

‘‘allegations’’ in the ADEA portion of this rule. The 

reason that Commission used the phrase 

‘‘allegations’’ instead of referencing a reasonable 

cause finding is because the ADEA section that 

describes the Commission’s conciliation obligations 

is not dependent on a reasonable cause finding, 

unlike Title VII. See 29 U.S.C. 626(d)(2). 

9This was the average for fiscal year 2019. 

10This analysis focuses only on an employer’s 

litigation costs because most plaintiff-side attorneys 

use contingency-fee arrangements for pursuing 

claims, in which the attorney receives a portion of 

the recovery and charges little or nothing if no 

recovery is obtained. See Martindale-Nolo Research, 

Wrongful Termination Claims: How Much Does a 

Lawyer Cost? (Nov. 14, 2019), available at https:// 

www.lawyers.com/legal-info/labor-employmentlaw/wrongful-termination/wrongful-terminationclaims-how-much-does-a-lawyer-cost.html (noting 

that 75% of plaintiffs lawyers in employment 

litigation use contingency fee arrangements and 

another 15% use a combination of a contingency fee 

and hourly rate). Thus, more frequent conciliation 

will save litigation costs for those few plaintiffs 

who pay their attorneys an hourly rate. 

where employers agree to participate in 

conciliation, there is more than a 50% 

chance of achieving resolution. Getting 

more employers to agree to participate 

is the first step to getting more 

resolutions. By providing basic 

information about the facts and legal 

arguments behind the claim, the 

Commission increases the likelihood 

that the respondent will recognize the 

merit of the Commission’s position and 

conciliate. 

Finally, the Commission has decided 

to remove from the final rule any 

requirement that it disclose material 

information that caused it to doubt its 

determination of reasonable cause. After 

reviewing the points raised by several 

commenters, the Commission is 

concerned about the potential for 

collateral challenges that this 

requirement may create. As the 

Commission has stated above, the 

purpose of this final rule is not to create 

or encourage potential new avenues for 

dilatory litigation on conciliation. Based 

on its review of the comments, the 

Commission believes the litigation risks 

of this part of the proposal outweigh the 

increase in transparency that would be 

achieved specifically by this provision. 

The Commission expects that its 

personnel will continue to evaluate, 

weigh, and proactively address evidence 

that runs contrary to a reasonable cause 

finding in its summary under 

§ 1601.24(d)(2). In cases where the facts 

or the law suggest that reasonable cause 

is lacking, existing protocols require 

field personnel not to make such a 

finding. And the Commission’s 

employees adhere to these protocols— 

and their professional obligations—in 

evaluating cases. For these reasons and 

after carefully considering the 

comments regarding this proposal, the 

Commission has removed this 

requirement from the final rule. 

Final Regulatory Revisions 

After considering all comments 

received, the Commission is finalizing 

the proposed rule as modified in the 

discussion above.8 These changes will 

bring more clarity, transparency, and 

consistency to the conciliation process. 

They will encourage more respondents 

to participate and the Commission to 

better articulate it positions at the outset 

of conciliation. The final rule sets out 

procedures that will support the 

Commission’s ability to meet statutory 

obligations to attempt to conciliate, i.e., 

to ‘‘tell the employer about the claim— 

essentially, what practice has harmed 

which person or class—and provide the 

employer with an opportunity to 

discuss the matter in an effort to achieve 

voluntary compliance.’’ Mach Mining, 

575 U.S. at 488. As the Court noted, 

conciliations ‘‘necessarily involve 

communication between parties, 

including the exchange of information 

and views.’’ Id. This final rule ensures 

that the Commission’s exchange of 

information occurs in an open, 

transparent manner. These changes 

should make the conciliation process 

more successful and, in so doing, 

enhance the Commission’s fulfilment of 

its mission to eliminate unlawful 

discrimination in employment. 

Regulatory Procedures 

Executive Order 12866 

This rule has been determined to be 

significant under E.O. 12866 by the 

Office of Management and Budget 

because it raises novel legal or policy 

issues arising out of legal mandates or 

the President’s priorities. The rule will 

not have an annual effect on the 

economy of $100 million or more, nor 

will it adversely affect the economy in 

any material way. Thus, it is not 

economically significant for purposes of 

E.O. 12866 review. However, the rule 

will have many benefits as 

demonstrated by the following costbenefit analysis. 

The rule imposes no direct costs on 

any third parties and only imposes 

requirements on the EEOC itself. The 

rule, if implemented, will likely require 

the EEOC to conduct training of staff to 

ensure that it is complying with the new 

regulation. While these changes and 

training would likely be absorbed 

within the Commission’s normal 

operating expenses, any additional 

expenses that the agency would incur 

could be offset by cost savings derived 

from these changes. For example, 

charging parties often file Freedom of 

Information Act (FOIA) requests with 

the Commission after receiving a ‘‘right 

to sue notice’’ in order to receive the 

charge file. If more cases are resolved in 

conciliation, these cases would not 

result in right to sue notices and the 

Commission would receive fewer FOIA 

requests, resulting in cost savings for the 

government. 

Furthermore, while the parties 

ultimately determine whether a 

conciliation agreement is reached, if the 

Commission is able to conciliate more 

cases successfully, it will benefit 

employees, employers, and the economy 

as a whole. With respect to employees, 

an increase in successful conciliations 

will result in more employees receiving 

remedies for the discrimination they 

suffered within an accelerated 

timeframe. Many employees who 

receive reasonable cause findings are 

unable to obtain any relief without 

conciliation because they do not pursue 

litigation for fiscal, emotional, or other 

reasons, or even if they do pursue 

litigation, ultimately do not attain relief. 

Even employees who ultimately would 

otherwise be successful in litigation 

may benefit from a conciliation because 

they would then receive remedies 

sooner and avoid the time, cost, stress, 

and uncertainty of litigation. 

Employers will also benefit from the 

EEOC conciliating cases more 

successfully. In some cases, 

conciliations may provide an 

opportunity for employers to more 

quickly correct any discriminatory 

conduct or policies and seek 

compliance assistance from the EEOC. 

Additionally, while employers pay 

$45,466 9 on average to settle cases in 

conciliation, they will save time, 

resources, and money by avoiding (often 

costly and lengthy) litigation. It is 

difficult to quantify the average cost of 

litigating an employment discrimination 

case for an employer because the cost of 

a case depends on several factors, such 

as the complexity of the case, length of 

the litigation, and the jurisdiction in 

which it is litigated.10

The stage at which litigation 

concludes has a large effect on litigation 

costs—attorneys’ fees and other 

litigation expenses are significantly 

higher for cases that go through trial, as 


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2984 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations 

11 John Hyman, How Much Does it Cost to Defend 

an Employment Lawsuit, in Workforce, (May 14, 

2013), available at https://www.workforce.com/ 

news/how-much-does-it-cost-to-defend-anemployment-lawsuit. 

12These calculations were made using the 

Department of Labor Bureau of Labor Statistics’s 

(BLS) Consumer Price Index calculator, available at 

https://www.bls.gov/data/inflation_calculator.htm. 

These increases are likely conservative, as they are 

similar to increases in legal service costs over a 

shorter time frame. Historical data for the BLS 

Producer Price Index for Legal Services in the MidAtlantic region, available at https://www.bls.gov/ 

regions/mid-atlantic/data/producerpriceindexlegal_

us_table.htm, reveals that average costs for 

employment and labor legal services increased from 

100 in December 2014 (the earliest data available) 

to 109.9 in April 2020 (the most recent non- 

‘‘preliminary’’ data), an increase of approximately 

10%. Similarly, the U.S. Department of Justice’s 

USAO Attorney’s Fees Matrix, which only measures 

the change in fees between 2015–2020 across the 

legal field, reveals a roughly 12% change in hourly 

rate for the most experienced attorneys in the 

District of Columbia. See https://www.justice.gov/ 

usao-dc/page/file/1305941/download. 

13 ‘‘There do not appear to be any reliable 

statistics on the percentage of employers who 

retained outside counsel to defend charges filed 

with the EEOC.’’ Philip J. Moss, The Cost of 

Employment Discrimination Claims, 28 Maine Bar 

J. 24, 25 (Winter 2013). Supposing ‘‘conservatively’’ 

that 50% of employers relied on outside counsel at 

an hourly rate averaging $250 (in 2013) and 

invested 20 hours in cases during the EEO process, 

Id., employers would average $2,500 in legal costs 

during the EEO process ($250 × 20 hours × 0.5), 

which in present value would average $2,792. The 

costs for employers who use in-house counsel or 

human resource professionals to handle their EEOC 

charges are more difficult to quantify. 

14Paul D. Seyfarth, Efficiently and Effectively 

Defending Employment Discrimination Cases, 63 

AmJur Trials 127, § 81 (Supp. 2020) (‘‘It is an 

undeniable fact that most employment 

discrimination cases do not get tried; they are either 

settled or disposed of via summary judgment.’’). 15Charlotte S. Alexander, Nathan Dahlberg, Anne 

M. Tucker, The Shadow Judiciary, 39 Rev. of Lit. 

303 (2020) (Table 3) (finding that among summary 

judgment motions in employment cases handled by 

magistrate judges in the Northern District of 

Georgia, 78% are granted in part or in full); Deborah 

Thompson Eisenberg, Stopped at the Starting Gate: 

The Overuse of Summary Judgment in Equal Pay 

Cases, 57 N.Y. L. Sch. L. Rev. 815, 817 (2012/2013) 

(finding that approximately two-thirds of all equal 

pay act cases end at the summary judgment stage). 

16Average summary judgment fees ($111,000) + 

average trial fees ($237,000)/2 = $174,000. This 

figure is within the range of other estimates for 

average attorney fee costs. See AmTrust Financial, 

Employment Practices Liability (EPLI) Claims 

Trends, Stats & Examples, available at https://

amtrustfinancial.com/blog/insurance-products/toptrends-employment-practices-liability-claims 

(asserting that attorney fee costs in 2018 averaged 

$160,000, which in present value would amount to 

$167,000); Moss, supra note 7 (citing Blasi and 

Doherty, California Employment Discrimination 

Law and its Enforcement: The Fair Employment 

and Housing Act at $0, UCLA–RAND Center for 

Law and Public Policy (2010)) (estimating costs to 

employers in state-level employment 

discrimination cases in California in 2010 at 

$150,000, which taken to present value would 

average approximately $180,000). 

17For fiscal year 2019, the Commission filed 157 

lawsuits. EEOC Litigation Statistics, https://

www.eeoc.gov/statistics/eeoc-litigation-statistics-fy1997-through-fy-2019. Overall, in fiscal year 2019, 

there were 1,427 cases in which the Commission 

found reasonable cause but conciliation was 

unsuccessful. https://www.eeoc.gov/statistics/allstatutes-charges-filed-eeoc-fy-1997-fy-2019. 

18To give some sense of the scope of cases, 

federal courts reported that 42,053 ‘‘Civil Rights’’ 

cases were filed in federal court during the most 

recent year. https://www.uscourts.gov/sites/default/ 

files/data_tables/fcms_na_distprofile0630.2020.pdf. 

While not all these civil rights cases involve 

employment discrimination, and this number 

would include cases where a private plaintiff filed 

suit after the EEOC did not find reasonable cause, 

it illustrates that the assumption—that half of the 

roughly 1,400 cases in which conciliation is 

unsuccessful end up in court—is likely a low 

estimate. 

19 100 successful conciliations × $45,466 (average 

conciliation for fiscal year 19) = $4,546,600. 

However, this number is offset by the litigation 

costs saved in 50 cases (assuming half the cases 

would have ended in in litigation): 50 × $174,000 

= $8,700,000. $8,700,000¥$4,546,600 = $4,153,400 

in savings for every 100 cases that are conciliated. 

opposed to those that end in summary 

judgment. For example, in 2013, one 

experienced defense attorney estimated 

that the average attorney’s fees for 

employers for cases that end in 

summary judgment was between 

$75,000 and $125,000; while cases that 

go to trial average between $175,000 and 

$250,000 in fees.11 Factoring for 

inflationary changes in legal fees, the 

present value of those costs is closer to 

$83,000 to $139,000 for cases ending in 

summary judgment and $195,000 to 

$279,000 for cases that end after a 

trial.12 Taking the middle of each range 

in present value results in average costs 

of $111,000 for cases ending in 

summary judgment and $237,000 for 

cases that end after trial. The 

Commission recognizes that many 

employers will find these fee estimates 

to be low, but because there is 

insufficient, publicly available data for 

calculating the amount that employers 

have expended in defending against a 

charge through conciliation 13 and 

which otherwise would be subtracted 

for purposes of this analysis, the 

Commission believes such a 

conservative estimate is appropriate. 

To determine the average amount 

spent on attorney’s fees, the 

Commission also must consider the 

number of cases that were the subject of 

conciliation that are either resolved at 

summary judgment or proceed to trial. 

The majority of cases of employment 

discrimination are not tried.14 Some 

studies suggest that two-thirds or more 

of employment discrimination lawsuits 

that are filed in court end in summary 

judgment.15 Those statistics, however, 

include cases filed in court after the 

EEOC dismissed the charge without a 

reasonable cause determination. In 

conciliation cases, by contrast, the 

EEOC has conducted an investigation 

and found reasonable cause to conclude 

that discrimination may have occurred. 

The Commission believes it is 

reasonable to assume that more of these 

latter cases will survive summary 

judgment. With this assumption, the 

average litigation cost for employers is 

$174,000.16

Resolving more cases through 

conciliation will be beneficial to the 

economy as a whole because the 

litigation costs that the parties save can 

be put towards more productive uses, 

such as expanding businesses and 

hiring more employees. It is difficult to 

quantify how many cases in which the 

Commission finds reasonable cause end 

up being litigated in court because, if 

the EEOC decides to not litigate the 

case, the Commission does not track 

lawsuits filed by private plaintiffs. The 

Commission believes that cases in 

which the EEOC found reasonable cause 

are the most likely to be litigated by a 

private plaintiff because the EEOC has 

already determined that there is 

reasonable cause to believe that the case 

has merit. While not all cases in which 

reasonable case is found and 

conciliation is unsuccessful are 

litigated, there is reason to believe that 

a significant portion are. The 

Commission itself files lawsuits in 

roughly 10% of the cases in which 

reasonable cause is found and 

conciliation is not successful.17 It is 

reasonable to believe that private 

plaintiffs file lawsuits in at least an 

additional 40% of cases, so that overall 

half the cases in which reasonable cause 

is found, but conciliation is 

unsuccessful, end up being litigated in 

court.18

Using the numbers above, if the 

Commission successfully conciliated 

only 100 more cases each year, that 

would save the economy over $4 

million in litigation costs.19

Therefore, the Commission’s rule, 

which establishes basic information 

disclosure requirements that will make 

it more likely that employers have a 

better understanding of the EEOC’s 

position in conciliation and, thus, make 

it more likely that the conciliation will 

be successful, will result in significant 

economic benefits when it is 

successfully implemented. 

Executive Order 13771 

This rule is not expected to be an E.O. 

13771 regulatory action because it will 

not impose total costs greater than $0. 

As described above, the Commission’s 

rule will result in more successful 

conciliations and therefore, overall cost 

reduction, so this is considered a 

deregulatory action. Details on the 

expected impacts of the rule can be 

found in the Commission’s analysis 

above. 


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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations 2985 

Paperwork Reduction Act 

This rule contains no new 

information collection requirements 

subject to review by the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

Regulatory Flexibility Act 

The Commission certifies under 5 

U.S.C. 605(b) that this rule will not have 

a significant economic impact on a 

substantial number of small entities 

because it applies exclusively to 

employees and agencies of the federal 

government and does not impose a 

burden on any business entities. For this 

reason, a regulatory flexibility analysis 

is not required. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Congressional Review Act 

While the Commission believes the 

rule is a rule of agency procedure that 

does not substantially affect the rights or 

obligations of non-agency parties and, 

accordingly, is not a ‘‘rule’’ as that term 

is used by the Congressional Review Act 

(Subtitle E of the Small Business 

Regulatory Enforcement Fairness Act of 

1996), it will still follow the reporting 

requirement of 5 U.S.C. 801. This is not 

a ‘‘major rule’’ as the term is defined in 

5 U.S.C. 804(2). 

List of Subjects in 29 CFR Parts 1601 

and 1626 

Administrative practice and 

procedure, Equal Employment 

Opportunity. 

For the Commission. 

Janet Dhillon, 

Chair. 

For the reasons set forth in the 

preamble, the Commission amends 29 

CFR parts 1601 and 1626 as follows: 

PART 1601—PROCEDURAL 

REGULATION 

■ 1. The authority citation for part 1601 

continues to read as follows: 

Authority: 42 U.S.C. 2000e to 2000e–17; 

42 U.S.C. 12111 to 12117; 42 U.S.C. 2000ff 

to 2000ff–11. 

■ 2. Amend § 1601.24 by adding 

paragraphs (d), (e), and (f) to read as 

follows: 

§ 1601.24 Conciliation: Procedure and 

authority. 

* * * * * 

(d) In any conciliation process 

pursuant to this section, after the 

respondent has agreed to engage in 

conciliation, the Commission will: 

(1) To the extent it has not already 

done so, provide the respondent with a 

written summary of the known facts and 

non-privileged information that the 

Commission relied on in its reasonable 

cause finding, including identifying 

known aggrieved individuals or known 

groups of aggrieved individuals for 

whom relief is being sought, unless the 

individual(s) has requested anonymity. 

In the event that it is anticipated that a 

claims process will be used 

subsequently to identify aggrieved 

individuals, to the extent it has not 

already done so, identify for respondent 

the criteria that will be used to identify 

victims from the pool of potential class 

members. In cases in which that 

information does not provide an 

accurate assessment of the size of the 

class, for example, in harassment or 

reasonable accommodation cases, the 

Commission shall provide more detail 

to respondent, such as the identities of 

the harassers or supervisors, if known, 

or a description of the testimony or facts 

we have gathered from identified class 

members during the investigation. The 

Commission will disclose the current 

class size and, if class size is expected 

to grow, an estimate of potential 

additional class members to the extent 

known; 

(2) To the extent it has not already 

done so, provide the respondent with a 

written summary of the Commission’s 

legal basis for finding reasonable cause, 

including an explanation as to how the 

law was applied to the facts. In 

addition, the Commission may, but is 

not required to, provide a response to 

the defenses raised by respondent; 

(3) Provide the respondent with the 

basis for monetary or other relief, 

including the calculations underlying 

the initial conciliation proposal and an 

explanation thereof in writing. A 

written explanation is not required for 

subsequent offers and counteroffers; 

(4) If it has not already done so, and 

if there is a designation at the time of 

the conciliation, advise the respondent 

in writing that the Commission has 

designated the case as systemic, class, or 

pattern or practice as well as the basis 

for the designation; and 

(5) Provide the respondent at least 14 

calendar days to respond to the 

Commission’s initial conciliation 

proposal. 

(e) The Commission shall not disclose 

any information pursuant to paragraph 

(d) of this section where another federal 

law prohibits disclosure of that 

information or where the information is 

protected by privilege. 

(f) Any information the Commission 

provides pursuant to paragraph (d) of 

this section to the Respondent, except 

for information about another charging 

party or aggrieved individual, will also 

be provided to the charging party, upon 

request. Any information the 

Commission provides pursuant to 

paragraph (d) of this section about an 

aggrieved individual will also be 

provided to the aggrieved individual, 

upon request. 

PART 1626—PROCEDURES—AGE 

DISCRIMINATION IN EMPLOYMENT 

ACT 

■ 1. The authority citation for part 1626 

continues to read as follows: 

Authority: Sec. 9, 81 Stat. 605, 29 U.S.C. 

628; sec. 2, Reorg Plan No. 1 of 1978, 3 CFR, 

1978 Comp., p. 321. 

■ 2. Revise § 1626.12 to read as follows: 

§ 1626.12 Conciliation efforts pursuant to 

section 7(d) of the Act. 

(a) Upon receipt of a charge, the 

Commission shall promptly attempt to 

eliminate any alleged unlawful practice 

by informal methods of conciliation, 

conference, and persuasion. Upon 

failure of such conciliation the 

Commission will notify the charging 

party. Such notification enables the 

charging party or any person aggrieved 

by the subject matter of the charge to 

commence action to enforce their rights 

without waiting for the lapse of 60 days. 

Notification under this section is not a 

Notice of Dismissal or Termination 

under § 1626.17. 

(b) In any conciliation process 

pursuant to this section the Commission 

will: 

(1) If it has not already done so, 

provide the respondent with a written 

summary of the known facts and nonprivileged information that form the 

basis of the allegation(s), including 

identifying known aggrieved 

individuals or known groups of 

aggrieved individuals, for whom relief is 

being sought, but not if the individual(s) 

has requested anonymity. In the event 

that it is anticipated that a claims 

process will be used subsequently to 

identify aggrieved individuals, if it has 

not already done so, identify for 

respondent the criteria that will be used 

to identify victims from the pool of 

potential class members; 


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2986 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations 

(2) If it has not already done so, 

provide the respondent with a written 

summary of the legal basis for the 

allegation(s). In addition, the 

Commission may, but is not required to 

provide a response to the defenses 

raised by respondent; 

(3) Provide a written basis for any 

monetary or other relief including the 

calculations underlying the initial 

conciliation proposal, and an 

explanation thereof. A written 

explanation is not required for 

subsequent offers and counteroffers; 

(4) If it has not already done so, 

advise the respondent in writing that 

the Commission has designated the case 

as systemic, class, or pattern or practice, 

if the designation has been made at the 

time of the conciliation, and the basis 

for the designation; and 

(5) Provide the respondent at least 14 

calendar days to respond to the 

Commission’s initial conciliation 

proposal. 

(c) The Commission shall not disclose 

any information pursuant to paragraph 

(b) of this section where another federal 

law prohibits disclosure of that 

information or where the information is 

protected by privilege. 

(d) Any information the Commission 

provides pursuant to paragraph (b) of 

this section to the respondent, except 

for information about another charging 

party or aggrieved individual, will also 

be provided to the charging party, upon 

request. Any information the 

Commission provides pursuant to 

paragraph (b) of this section to the 

respondent about an aggrieved 

individual will be provided to the 

aggrieved individual, upon request. 

■ 3. Amend § 1626.15 by adding a new 

sentence to the end of paragraph (d) to 

read as follows: 

§ 1626.15 Commission enforcement. 

* * * * * 

(d) * * * Any conciliation process 

under this paragraph shall follow the 

procedures as described in § 1626.12. 

* * * * * 

[FR Doc. 2021–00701 Filed 1–13–21; 8:45 am] 

BILLING CODE 6570–01–P 

POSTAL SERVICE 

39 CFR Part 233 

Inspection Service Authority; Civil 

Monetary Penalty Inflation Adjustment 

AGENCY: Postal ServiceTM. 

ACTION: Interim final rule. 

SUMMARY: This document updates postal 

regulations by implementing inflation 

adjustments to civil monetary penalties 

that may be imposed under consumer 

protection and mailability provisions 

enforced by the Postal Service pursuant 

to the Deceptive Mail Prevention and 

Enforcement Act and the Postal 

Accountability and Enhancement Act. 

These adjustments are required under 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended by 

the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015. This document includes the 

adjustments for 2021 for statutory civil 

monetary penalties subject to the 2015 

Act. 

DATES: Effective date: January 14, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Steven Sultan, (202) 268–7385, 

SESultan@uspis.gov. 

SUPPLEMENTARY INFORMATION: The 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (2015 Act), Public Law 114–74, 

129 Stat. 584, amended the Federal Civil 

Penalties Inflation Adjustment Act of 

1990 (1990 Act), Public Law 101–410, 

104 Stat. 890 (28 U.S.C. 2461 note), to 

improve the effectiveness of civil 

monetary penalties and to maintain 

their deterrent effect. Section 3 of the 

1990 Act specifically includes the Postal 

Service in the definition of ‘‘agency’’ 

subject to its provisions. 

Beginning in 2017, the 2015 Act 

requires the Postal Service to make an 

annual adjustment for inflation to civil 

penalties that meet the definition of 

‘‘civil monetary penalty’’ under the 

1990 Act. The Postal Service must make 

the annual adjustment for inflation and 

publish the adjustment in the Federal 

Register by January 15 of each year. 

Each penalty will be adjusted as 

instructed by the Office of Management 

and Budget (OMB) based on the 

Consumer Price Index (CPI–U) from the 

most recent October. OMB has 

furnished detailed instructions 

regarding the annual adjustment for 

2021 in memorandum M–21–10, 

Implementation of Penalty Inflation 

Adjustments for 2021, Pursuant to the 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (December 23, 2020), https://

www.whitehouse.gov/wp-content/ 

uploads/2020/12/M-21-10.pdf. This 

year, OMB has advised that an 

adjustment multiplier of 1.01182 will be 

used. The new penalty amount must be 

rounded to the nearest dollar. 

The 2015 Act allows the interim final 

rule and annual inflation adjustments to 

be published without prior public 

notice or opportunity for public 

comment. 

Adjustments to Postal Service Civil 

Monetary Penalties 

Civil monetary penalties may be 

assessed for postal offenses under 

sections 106 and 108 of the Deceptive 

Mail Prevention and Enforcement Act, 

Public Law 106–168, 113 Stat. 1811, 

1814 (see, 39 U.S.C. 3012(a), (c)(1), (d), 

and 3017 (g)(2), (h)(1)(A)); and section 

1008 of the Postal Accountability and 

Enhancement Act, Public Law 109–435, 

120 Stat. 3259–3261 (see, 39 U.S.C. 3018 

(c)(1)(A)). The statutory civil monetary 

penalties subject to the 2015 Act and the 

amount of each penalty after 

implementation of the annual 

adjustment for inflation are as follows: 

39 U.S.C. 3012(a)—False 

Representations and Lottery Orders 

Under 39 U.S.C. 3005(a)(1)–(3), the 

Postal Service may issue administrative 

orders prohibiting persons from using 

the mail to obtain money through false 

representations or lotteries. Persons who 

evade, attempt to evade, or fail to 

comply with an order to stop such 

prohibited practices may be liable to the 

United States for a civil penalty under 

39 U.S.C. 3012(a). The regulations 

implemented pursuant to this section 

currently impose a $73,951 penalty for 

each mailing less than 50,000 pieces, 

$147,899 for each mailing of 50,000 to 

100,000 pieces, and $14,791 for each 

additional 10,000 pieces above 100,000 

not to exceed $2,957,993. The new 

penalties will be as follows: A $74,825 

penalty for each mailing less than 

50,000 pieces, $149,647 for each mailing 

of 50,000 to 100,000 pieces, and $14,966 

for each additional 10,000 pieces above 

100,000 not to exceed $2,992,956. 

39 U.S.C. 3012(c)(1)—False 

Representation and Lottery Penalties in 

Lieu of or as Part of an Order 

In lieu of or as part of an order issued 

under 39 U.S.C. 3005(a)(1)–(3), the 

Postal Service may assess a civil 

penalty. Currently, the amount of this 

penalty, set in the implementing 

regulations to 39 U.S.C. 3012(c)(1), is 

$36,975 for each mailing that is less 

than 50,000 pieces, $73,951 for each 

mailing of 50,000 to 100,000 pieces, and 

an additional $7,395 for each additional 

10,000 pieces above 100,000 not to 

exceed $1,478,996. The new penalties 

will be $37,412 for each mailing that is 

less than 50,000 pieces, $74,825 for each 

mailing of 50,000 to 100,000 pieces, and 

an additional $7,482 for each additional 

10,000 pieces above 100,000 not to 

exceed $1,496,478. 


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