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  4. Meeting of August 18, 2020 - Discussion of Notice of Proposed Rulemaking on Conciliation - Transcript

Meeting of August 18, 2020 - Discussion of Notice of Proposed Rulemaking on Conciliation - Transcript

PRESENT:

JANET DHILLON, CHAIR

CHARLOTTE A. BURROWS, COMMISSIONER

VICTORIA A. LIPNIC, COMMISSIONER

ALSO PRESENT:

SHARON F. GUSTAFSON, GENERAL COUNSEL

ANDREW F. MAUNZ, LEGAL COUNSEL

BERNADETTE B. WILSON, EXECUTIVE OFFICER

This transcript was produced from audio provided by the Equal Employment Opportunity Commission.

PROCEEDINGS

1:00 p.m.

CHAIR DHILLON: Good afternoon everyone, and welcome to a meeting of the Equal Employment Opportunity Commission.  The meeting will now come to order, and a quorum is present.  This meeting was noticed and is being held in accordance with the requirements of the Sunshine Act.

Today's meeting is open to the public to listen to the Commission's deliberations and voting.  Thank you to my fellow Commissioners, to all of the EEOC staff, and members of the public who are participating by phone.  To access our closed-captioning service, please go to the Commission's website at www.eeoc.gov.

This marks the EEOC's third virtual Commission meeting.  Thank you to all of the EEOC employees who have worked diligently to prepare this meeting, including my staff, the staff of Commissioners Lipnic and Burrows, the Office of Legal Counsel, the Office of Information Technology, the Office of Communications and Legislative Affairs, and the Executive Secretariat. 

While we are unquestionably becoming more efficient at organizing these virtual meetings, I'm certainly aware that the continuing state of our country and the uncertainty that we are facing, especially as the school year draws near, imposes a significant toll on our EEOC colleagues.  I remain mindful of the sacrifices you are all making and am so grateful for all of you for persevering and remaining committed to the EEOC's important mission.

Part of that effort includes our continued technical assistance to the public on COVID-19 and its implications on federal employment discrimination laws.  Our What You Should Know About COVID-19 and the ADA and the Rehabilitation Act and other EEO laws continues to be updated periodically.  I encourage listeners to periodically check the EEOC's website for this important information. 

The Notice of Proposed Rulemaking that is the subject of today's meeting is consistent with the Commission's continual efforts to improve the efficacy and efficiency of non-adversarial alternatives to litigation, in this instance, conciliation.  Section 706 of Title VII of the Civil Rights Act of 1964, as amended, requires that the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.

Congress went on to state that the Commission may only commence a civil action against an employer if the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission.  In 2015, the Supreme Court addressed the Commission's conciliation requirements in Mach Mining, LLC v. EEOC.  Writing for a unanimous court, Justice Kagan observed that in pursuing the goal of bringing employment discrimination to an end, Congress chose cooperation and voluntary compliance as its preferred means.  Accordingly, Justice Kagan noted, the statute provides that the Commission shall endeavor to eliminate an alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.

Since Mach Mining, the Commission has issued internal guidance describing what needs to be done in order to comply with that decision and has done training.  Despite this direction and training, however, the Commission hears instances in which conciliation has failed as a result of mistrust between the parties.  In fact, between fiscal years 2016 and 2019, only 41.23 percent of the EEOC's conciliations were successful, and one-third of the time when conciliation was offered, it was declined.

But the purpose of formalizing through regulation what has up until this point been aspirational, is to create greater accountability and transparency in the conciliation process and to bridge the communication gap that I believe has interfered with the success of our conciliation program.  I'm cognizant of the concerns that regulating the conciliation process will interfere with the Commission's ability to act and respond as needed in any particular instance.  I believe, however, that this draft NPRM strikes an appropriate balance while maintaining the flexibility the Commission needs, and at the same time ensuring meaningful communication between Commission and respondents.

Before I move to the matter at hand, I would like to briefly explain the procedures for this meeting.  A verbatim transcript will be made of today's proceedings.  For that purpose, the meeting is being recorded.  We will post a transcript on the EEOC's website at www.eeoc.gov.  As the presiding officer, I am responsible for regulating the course of this meeting and shall dispose of procedural matters.  While this meeting is open to the public, remarks and questions will not be taken from the audience.

There is one item on today's agenda.  Our Legal Counsel, Andrew Maunz, will provide a summary of the item and be able to answer the Commissioners' questions.  Following his presentation, I will call on each Commissioner to address the matter at issue.  We will have two rounds of comments and questions from each Commissioner.  During these rounds, Commissioners may pose questions to the presenter and offer her own comments and observations.  If a Commissioner seeks to amend the agenda item, she must offer that amendment while she has the floor.  If the motion to amend is seconded, we will move to a debate on the proposed amendment.

After the amendment is voted on, we will resume debate on the underlying agenda item which may or may not have been amended.  I will now turn it over to Mr. Maunz, Legal Counsel, to address the NPRM.

MAUNZ: Hello everyone. Chair Dhillon and Commissioners Lipnic and Burrows, thank you for the opportunity to participate in today's meeting. I am here to discuss the Notice of Proposed Rulemaking that is currently before the Commission that proposes to amend the Commission's procedural rules on conciliation.

Conciliation plays a vital role in the Commission's fulfilment of its mission.  Voluntary resolution through conciliation is recognized as Congress' preferred means of resolving employment discrimination claims.  As the Supreme Court recognized in 2015 in the Mach Mining case, the Commission has a statutory obligation to attempt to conciliate any charge after the Commission finds reasonable cause to believe that discrimination has occurred. The Commission also has a legal obligation to attempt to conciliate a case before filing a lawsuit.  Indeed, as the Supreme Court noted, the Commission's duty to conciliate comes with concrete standards as to what that effort must include.  According to the Court, at a minimum, the Commission must: 1) tell the employer about the claim, and 2) give the employer an opportunity to discuss the matter to achieve voluntary compliance.  This proposed rule, as I will more fully explain in a moment, will help ensure that the Commission meets its statutory conciliation obligations. 

In the past, the Commission has sought maximum flexibility in its conciliation process and avoided adding specifics to its conciliation regulations.  The Commission took this approach because it believed that maintaining maximum flexibility in conciliation would allow it to most effectively resolve cases. However, statistics show that there is room for improvement in how the Commission approaches conciliation. 

Over the past 8 fiscal years, the Commission has only been able to resolve through conciliation around 40 percent of the cases in which it finds reasonable cause.  Let's break down exactly what those numbers represent.  This is not 40 percent of all charges, but rather 40 percent of those charges for which the Commission finds there is reasonable cause to believe that discrimination has occurred.  So, even in charges with the most merit, the Commission has only been able to voluntarily resolve these cases less than half the time. Since the Commission can only pursue litigation itself in a couple hundred cases a year, that means that failing to conciliate these cases leaves thousands of individuals with valid discrimination claims to fend for themselves in order to receive any redress.  Part of the Commission's lack of success in conciliation is attributable to the fact that an estimated 1/3 of employers who receive a reasonable cause finding decide not to even participate in conciliation.  Such a widespread rejection of the process suggests that many employers do not believe participating in conciliation with the EEOC is worthwhile. 

The proposed rule, if adopted by the Commission, will implement important reforms that will put the Commission in a better position to resolve more cases.  The proposed rule amends the conciliation regulations to bring more transparency and consistency to the EEOC's conciliation process by requiring that the Commission ensures that certain threshold information has been provided to any employer that agrees to participate in conciliation.  The information that the Commission commits to providing in the proposed rule is foundational to any settlement discussion. 

In the proposed rule, the Commission commits in any conciliation:

1) To provide a written summary of the known facts and non-privileged information that the Commission relied on in making its reasonable cause finding.  This will also include identifying the known aggrieved individuals or groups of aggrieved individuals for whom relief is being sought, unless those individuals have requested anonymity.  In addition, the Commission will identify the criteria it will use to determine additional aggrieved individuals, if it anticipates discovering more aggrieved individuals who have not already been identified and who will need relief.

2) To provide a summary of the Commission's legal basis for finding reasonable cause.  This will include an explanation of how the law was applied to the facts of the case.  In addition, the Commission will explain if there was material information that the Commission obtained during the investigation that caused the Commission to doubt whether reasonable cause existed, and how the Commission was still able to determine reasonable cause despite that information. 

3) To provide the basis for monetary and other relief the Commission seeks in conciliation, including the calculations underlying the initial conciliation proposal; and

4) To notify the respondent if the case has been designated systemic, class, or pattern or practice, and the basis for the designation.

In addition to these basic information disclosure requirements, the Commission also commits to provide a respondent at least 14 days to respond to the Commission's conciliation proposal. 

These proposed changes will allow employers who participate in conciliation to be better informed about the EEOC’s findings in the case and the Commission's positions during settlement discussions.  Committing the Commission to greater transparency promotes a free flow of information during the conciliation process and makes it more likely that respondents and the Commission will be able to have a meeting of the minds to resolve the case without litigation. Resolving more cases through conciliation is beneficial to all parties involved and achieves Congress' goal of having informal resolution be the primary way the Commission resolves employment discrimination claims. 

Not only will these proposed changes encourage more cases to be resolved through conciliation, but they will also help ensure the Commission meets its statutory conciliation obligations in the most effective manner.

Ultimately, this proposed rule, if approved, will put the Commission on the path to improving its conciliation process, creating an environment where parties have a better understanding of the Commission's position, and in the end, resolving more cases through informal means, just as Congress intended. 

Thank you for your time, and I look forward to your questions.

CHAIR DHILLON: Thank you.  I'll now offer the floor to Commissioner Lipnic for comments or questions.

COMMISSIONER LIPNIC: Thank you, Madam Chair, and good afternoon everyone and good afternoon to my colleagues.  I first want to second the comments of the Chair about how hard our staff has been working during these Coronavirus times and thank them also for their dedication and keeping up the good work and mission of the Commission. 

And I also do want to give a special shout-out to the Office of Legal Counsel for how much work they have been putting into this and the really excellent guidance that they have been providing related to questions under the ADA, and GINA and the ADEA in these Coronavirus times.  So thank you so much.

Turning to the matter at hand, first let me say that in the decade that I have been a part of the Commission, the conciliations or the conciliation process has been the subject of certainly a lot of commentary, both formal and informal, and also a lot of litigation, up to and including the Supreme Court's case in Mach Mining, as the Chair mentioned.  I do want to underscore that even with this NPRM to suggest improvements that we hope would come about through the conciliations process; it is by and large successful in terms of just looking at the numbers of how many matters the Commission resolves on an informal basis every year, that tends to be thousands of them.

In the time that I have been at the Commission, the success rate of conciliations has  increased from about 27 percent from a decade ago to 40 percent for the last fiscal year, FY 19.  Nevertheless, as I said, conciliations, the process has been the subject of a lot of commentary and I think it's fair to say, a fair amount of consternation from some of that commentary on the part of the Commission on the receiving end.  Consternation certainly on the part of the parties dealing with the Commission on both sides, whether it's the charging party, the charging party's attorney, or the Commission.   So I think that with this NPRM, one of the things that I welcome about having this NPRM go out for public comment, is that we will get comments in a formal way. 

So, I encourage when this ultimately is published in the Federal Register for public comment -- and I should mention, of course, that the stage of the process where we are right now is we are voting on something to send it to OMB for review, so at least a few steps away from it actually being published in the Federal Register.  But when it is, I do look forward to seeing the comments from those who have experience with the Commission, who have participated in conciliations, telling us where their experiences have been worthwhile and successful, and where they have criticisms to offer.  It's certainly been my experience that any time the Commission has published something for public comment, whether it's been a formal regulation, as this is proposed to be, or sub-regulatory guidance documents; we have benefitted greatly from that public comment.  So, I look forward to that being the case here, as well.

I also want to add that post-Mach Mining, when that case was decided in 2015 -- well, let me say first, pre-Mach Mining, there was an extensive amount of litigation that the Commission would be subject to about the whole process of conciliation.  And standards or as some perceived, lack of standards, all of that leading up ultimately to the Mach Mining decision.  That has dissipated a fair amount post-Mach Mining, but nevertheless, there is always room for improvement.

Post-Mach Mining, the Commission took a number of steps internally, guidance to the field, significant training about negotiations and conciliations for our staff, for our investigators and then again our new investigators, but as I said, there is still certainly opportunity for improvement. 

So, I look forward to further discussion here with my colleagues about this NPRM, and as I mentioned, I look forward to really what we will get in the public comments about what we are proposing here, but also about the public's experiences with the Commission on the conciliations process.  And with that, I yield back my time.

CHAIR DHILLON: Thank you, Commissioner Lipnic.  Commissioner Burrows, I now offer the floor to you for comments or questions.

COMMISSIONER BURROWS: Thank you.  And I would like to associate myself with the comments of my colleagues regarding my sincere thanks to those who have worked on this proposal.  I will say that conciliation impacts the right of every employee to be free from discrimination, harassment and retaliation at work.  EEOC uses conciliation to resolve charges of discrimination on behalf of thousands of working men and women each year.  As a result, this is probably the most important matter the Commission has considered during my tenure.  Unfortunately, the proposed conciliation guidelines are deeply flawed.  While I strongly support resolving charges quickly when it serves justice, conciliation is not an end in itself.

Resolving cases early can be win/win for workers and employers, but a quick settlement isn't always a fair settlement.  By law, EEOC's job is not to settle at any cost.  Our job is to get a fair settlement that eliminates unlawful discrimination.  This proposal elevates process over substance and undermines, frankly to a shocking degree, the Commission's ability to eliminate unlawful discrimination from the workplace.  There are two fundamental flaws.

First, the proposal will divert EEOC's scarce resources away from fighting discrimination by providing a new avenue for costly and time-consuming litigation against the Commission.  By regulating burdensome new steps that the EEOC must take in every conciliation, the proposed guidelines invite litigation over whether EEOC complies with these unnecessary rules.  That would divert our limited resources from remedying discrimination to defending our administrative process.  The EEOC's case against Mach Mining shows the danger of focusing on our conciliation process rather than an employer's discriminatory practices. 

That case started in 2008 when Brooke Petkas asked EEOC for help because Mach Mining refused to hire women for coal mining jobs.  Our investigation found that Mach Mining discriminated against Brooke and many other women.  The company had never hired a female miner, although many qualified women applied.  And once conciliation failed, EEOC sued Mach Mining for sex discrimination, but the company turned the entire case into a debate over conciliation.  We spent years and went all the way to the Supreme Court litigating EEOC's conciliation process instead of the company's blatant discrimination.

In 2015, the Supreme Court unanimously rejected Mach Mining's argument, essentially holding that focusing on EEOC's conciliation process instead of eliminating discrimination conflicts with Title VII and undermines the civil rights laws that we enforce.  Once the Supreme Court refocused the case on Mach Mining's discrimination, the company settled for $4.2 million and agreed to hire women.  But in the meantime, Brooke and all the other women we were seeking to help waited nine years for justice.  I guarantee they could not wait nine years, they could not afford those nine years to wait for a paycheck.  This proposal would bring back all the unnecessary red tape that caused that nine-year wait, except it's actually worse. 

Which brings me to my second problem with this proposal.  It would force EEOC to reveal the identities of every victim and witness, as well as privileged information, exposing workers to retaliation and jeopardizing our chances of success in court if the case fails to settle.  These broad disclosures would require us to tell employers that have discriminated exactly which employees had the courage to aide our investigation, essentially forcing us to hand over a road map for potential retaliation.  Despite declaring that privileges would be preserved, the proposal requires sweeping disclosures of privileged information.  We'd need to waive long-established privileges that are uniformly recognized by the courts, including the government deliberative process privilege, the attorney/client privilege and attorney work product.

These sweeping disclosures exceed even the robust disclosures required in criminal cases.  We'd need to give employers evidence to help them defeat claims of discrimination, and also reveal our attorneys' privileged legal answers to that evidence.  Waiving those privileges would severely jeopardize our ability to succeed in court if the case did not settle.  Given the challenges facing American workers today, including increased employment, the COVID-19 pandemic, and the need to address all forms of employment discrimination, our work in advancing civil rights is as important as ever.  These burdensome requirements undermine our ability to do that job, and they're a slap in the face of working people.  Given the issue's importance, I offer Amendment One to increase the public comment period from 30 days to the usual 60 days.

CHAIR DHILLON: Thank you.  Is there a second to the offered amendment?

COMMISSIONER LIPNIC: This is Commissioner Lipnic.  Just so I'm clear, I am seconding for purposes of debate, Madam Chair.

CHAIR DHILLON: That's correct.

COMMISSIONER LIPNIC: Yes, then I will second.

CHAIR DHILLON: Commissioner Burrows, do you wish to speak on behalf of your amendment?

COMMISSIONER BURROWS: Yes, I would.  There are two primary reasons the public should be afforded the full 60-day comment period rather than a shortened 30-day period.  First, this issue is of critical importance to our work and could dramatically change the manner in which conciliation is conducted for Agency employees in the field.  Because this issue is so crucial, the  public must, at a minimum, be given the opportunity to analyze the impact of the proposed rule and submit thorough and thoughtful comments in order to properly inform the Commission of its views.  As such, we should provide the public with the normal 60-day comment period. 

Second, the ongoing COVID-19 pandemic has generated a significant amount of work for both plaintiff and defense bar across the country.  Various businesses and advocacy organizations alike are going to want to express views about the rapid changes that they're facing in the employment area, with employers needing to adopt changes for safety and workplace changes dealing with rapid-fire changes in the law as federal, state and local governments issue new requirements affecting employees' health and safety, all of that makes it difficult for them to deal with this proposal in the 30 days that is suggested.

We should not ask them to rush to react to yet another requirement, but instead ensure enough time for them to review this sweeping proposal and provide thoughtful input.  Cutting the normal review period in half in the midst of this pandemic doesn't do that.  Thirty days is simply not enough time.  By contrast, in the pandemic our normal process has been at least 60 days for major policy proposals. 

In addition, the longer circulation period would give the Commission time to evaluate and analyze the data gathered in the ongoing conciliation project.  As you understand, the project began in 2019 during Commissioner Lipnic's term as Acting Chair and is discussed in our Fiscal Year 2020 and 2021 Congressional budget justifications as an effort to assess our current conciliation process by collecting and analyzing data from various efforts conducted across the agency.  That's been a major undertaking, and the Agency's Office of Enterprise Data and Analytics has been diligently collecting and reviewing the data for some time.

To ignore those efforts and insights is not only a waste of limited resources, it's also bad government practice.  So, we should have the benefit of this data and, in fact, if we were to fail, which I assume we would not do, to look at that data before issuing a final proposal; that I think would be the definition of arbitrary and capricious.  Given that these conciliation guidelines won't be completed until we've studied the conciliation project and its results, allowing the 60 days for public comment should not delay the proposal at all.  It would improve it, however, by allowing the public sufficient time to provide thoughtful input to the Commission.

Indeed, we will also need to study the results of the Chair's ongoing conciliation pilot before casting a final vote in this matter.  So again, a 60-day comment period should not create any additional delay.  Although I did not agree with the unilateral action in commencing the conciliation pilot back in May, the purpose of any pilot should be to provide the Commission with information to inform Agency's decision-making.  I assume that's the goal in this instance and that given the time and the resources this Agency has spent training staff to implement the pilot in all of our 53 offices nationwide, that we plan to study the results before taking a final vote in this matter.  Given the ongoing pandemic and the time the Commission will need to study its own data before taking a final vote on the pending proposal, I urge my colleagues to support Amendment One to replace the 30-day comment period with a 60-day comment period.  Thank you.

CHAIR DHILLON: Thank you Commissioner Burrows.  Is there any other comment on the amendment?

COMMISSIONER LIPNIC: Just quickly, Madam Chair, this is Commissioner Lipnic.  As the person who started the conciliations review, as Commissioner Burrows mentioned, and put it into our FY 2020, or was it 2019, budget document, I do look forward to the Commission having the opportunity to see the results of what the Office of Enterprise Data and Analytics has in their work with all of the field programs is seeing in their review of the conciliations.  I'm certainly interested in the conciliation pilot.  I think that those two things can certainly ultimately inform what I expect, and as I mentioned in my opening, hope to be robust comments from the public on this NPRM.

So we have sort of many irons in the fire related to conciliations right now, but I also think that we can walk and chew gum at the same time.  And I think that this particular NPRM is not a particularly complicated one, and certainly not voluminous.  And having been involved in NPRMs that are hundreds of pages long, I think that the amount of time the public will have here should suffice.  And, like I said, I hope that the convergence of the many irons in the fire related to conciliation will inform ultimately the Commission's ultimate decision, both on this NPRM and other internal matters on conciliations going forward.  I yield back.

CHAIR DHILLON: Thank you, Commissioner Lipnic.  Pending now is Commissioner Burrows' Amendment Number One.  For purposes of clarity of the record, we'll do the vote by roll call.  Commissioner Lipnic?

COMMISSIONER LIPNIC: I vote no.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: I vote yes.

CHAIR DHILLON: And I vote no, so the amendment fails.  Commissioner Burrows?

COMMISSIONER BURROWS: Yes, I offer Amendment Four to clarify that the Mach Mining decision did not specify valid or invalid methods of conciliation.

CHAIR DHILLON: Is there a second to Commissioner Burrows' Amendment Number Four?

COMMISSIONER LIPNIC: This is Commissioner Lipnic, I second.

CHAIR DHILLON: Thank you.  Commissioner Burrows, do you wish to speak to your amendment?

COMMISSIONER BURROWS: Yes, thank you, Madam Chair.  This amendment would correct inaccurate and confusing language in the draft regarding valid conciliation efforts.  In Mach Mining, the Supreme Court did not specify valid or invalid methods of conciliation.  To the contrary, the Court held that conciliation need not involve any specific steps or measures, and that's a quote.  Rather the EEOC can use whatever informal means of settlement are appropriate in each case. 

The Court explained that flexibility is the hallmark of the statute and specifically rejected Mach Mining's request to impose a bargaining checklist on the Commission.  That's because conciliation is not about process alone.  It explicitly serves a substantive purpose, the elimination of workplace discrimination.  But the proposed guidelines list steps the Commission will take in every conciliation, the effect would be to propose by regulation what the Supreme Court unanimously said we need not do in Mach Mining.  More importantly, the rigidity of the proposal could weaken our ability to effectively enforce the statute on behalf of working men and women who rely on the EEOC to protect their civil rights.

The proposed guidelines would also formalize what Congress intended to be an informal, flexible process.  This Amendment is necessary to accurately reflect Congress' intent as unanimously recognized by the Supreme Court.  The Commission should not adopt new rules for conciliation that are not required by the statutes we enforce, and that could limit our discretion to tailor conciliation to the unique facts and circumstances of each case.  Accordingly, I urge my colleagues to support Amendment Four.

CHAIR DHILLON: Thank you, Commissioner Burrows.  Commissioner Lipnic, do you wish to speak to Amendment Number Four?

COMMISSIONER LIPNIC: I'll just add, Madam Chair, that I think this is a good amendment.

CHAIR DHILLON: Thank you.  Again, for purposes of clarity of the record, we will hold our vote on Amendment Number Four by roll call.  Commissioner Lipnic?

COMMISSIONER LIPNIC: Commissioner Lipnic votes yes.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: Commissioner Burrows votes yes.

CHAIR DHILLON: And I will vote yes, as well, and so, Amendment Number Four is adopted.  Commissioner Burrows?

COMMISSIONER BURROWS: I would like to offer Amendment Five to add the Supreme Court's explanation of conciliation and strike an irrelevant legal citation.

CHAIR DHILLON: Is there a second to Amendment Number Five?

COMMISSIONER LIPNIC: This is Commissioner Lipnic, second.

CHAIR DHILLON: Thank you.  Commissioner Burrows, do you wish to speak to Amendment Number Five?

COMMISSIONER BURROWS: Yes, thank you.  Madam Chair, the proposal's preamble correctly recognizes the Commission has wide latitude and expansive discretion over conciliation.  Instead of quoting from the Supreme Court's language in Mach Mining, however, the preamble goes on to cite a concurring opinion from an irrelevant lower court case.  The case cited in the proposal is about the admissibility of expert reports and not about conciliation.  The Commission should not be citing irrelevant non-binding lower-court precedents when the Supreme Court has spoken on this very issue.  I therefore move to amend the preamble to strike the irrelevant citation to Freeman and replace it with the following quote from Mach Mining.

And the quote reads, “Every aspect of Title VII’s conciliation provision smacks of flexibility.  To begin with, the EEOC need only endeavor to conciliate a claim without having to devote a set amount of time or resources to that project.  Further, the attempts need not involve any specific steps or measures.  Rather the Commission may use in each case whatever informal means of conference, conciliation and persuasion it deems appropriate, and the EEOC alone decides whether in the end to make an agreement or resort to litigation.  The Commission may sue whenever unable to secure terms acceptable to the Commission.”   And that is the end of the quote from Mach Mining, 575 U.S. 493, which is also quoting, of course, Title VII, 2000e-5(f)(1).  I urge the colleagues to support Amendment Five to add this unanimous language from the Supreme Court to our explanation of conciliation and to strike the irrelevant legal citation to the Freeman decision.

CHAIR DHILLON: Thank you, Commissioner Burrows.  Commissioner Lipnic, do you wish to add any comments on the proposed amendment?

COMMISSIONER LIPNIC: The only thing I would add is that again, recognizing the stage we are in for this NPRM, which is to send it to OMB for review, so there is further opportunity once we have the reviewers at OMB to take a look at both the preamble and the regulatory language.

CHAIR DHILLON: Thank you, Commissioner Lipnic.  Again, I will conduct the vote by roll call for purposes of clarity of the record.  This is on Commissioner Burrows' Amendment Number Five.  Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC: Commissioner Lipnic votes no.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: Yes.

CHAIR DHILLON: And I will vote no, so the amendment fails.  Commissioner Burrows?

COMMISSIONER BURROWS: Yes, I'd like to offer Amendment Six to add Supreme Court language explaining that conciliation is not an end in itself, but a tool to remedy discrimination.

CHAIR DHILLON: Thank you.  Is there a second to Commissioner Burrows' Amendment Number Six?

COMMISSIONER LIPNIC: This is Commissioner Lipnic, second.

CHAIR DHILLON: Thank you.  Commissioner Burrows, would you like to speak in favor of your proposed Amendment Number Six?

COMMISSIONER BURROWS: Yes, Madam Chair.  The proposal's preamble states that the “preferred method,” for remedying employment discrimination is through cooperation and voluntary compliance, which includes conciliation.  I certainly agree that voluntary compliance is preferable to the risks and expenses of litigation to enforce the law.  But, Congress did not direct the Commission to resolve charges of discrimination and avoid litigation at any cost.  Instead, Congress specifically directed the Commission to seek a voluntary resolution that eliminates unlawful discrimination.

Conciliation therefore is not an end in itself, but rather a tool to remedy workplace discrimination.  In 1972 when Congress amended Title VII to give us authority to sue to enforce the law, it recognized that voluntary conciliation alone is simply insufficient to remedy discrimination.  The Senate report from the 1972 amendment notes that, “regrettably the practices and policies of discrimination in employment are so deeply ingrained that the voluntary conciliation approach has not succeeded in adequately combating the existence of such practices,” and that's still true in 2020.

While voluntary resolution is the goal, it is simply not the case that every employer or even most employers who are found to have discriminated will agree to a settlement that remedies discrimination.  I'm concerned that the proposal elevates the process over substance and incentivizes settlement at all costs.  Such an approach would undermine the Commission's statutory duty to eliminate unlawful discrimination from the workplace.  I therefore move to amend the preamble to add the following language, clarifying the purpose of conciliation and the proper interpretation of the guidelines. The Commission also recognizes, I'm sorry, I'm quoting. “The Commission also recognizes, however, that Title VII treats the conciliation process not as an end in itself, but only as a tool to address workplace discrimination.”

As the Supreme Court stated in Mach Mining, Title VII ultimately cares about substantive results.  Its conciliation provision explicitly serves a substantive mission, to eliminate unlawful discrimination from the workplace.  Accordingly, while the Commission is providing additional guidance to EEOC employees when conducting conciliation, it wishes to emphasize that these procedures would not be interpreted to elevate form over substance in a manner that will undermine the overarching legislative goal of eliminating unlawful workplace discrimination.”  I urge my colleagues to support Amendment Six to add this unanimous Supreme Court language explaining that conciliation is not an end in itself, but rather a tool to remedy discrimination.

CHAIR DHILLON: Thank you, Commissioner Burrows.  Commissioner Lipnic, do you wish to speak to proposed Amendment Number Six.

COMMISSIONER LIPNIC: I have nothing further to add, Madam Chair.

CHAIR DHILLON: Thank you.  Again, for purposes of clarity of the record we'll conduct our vote by roll call.  On proposed Amendment Number Six, Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC: I vote no.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: Aye.

CHAIR DHILLON: And I will vote no, so the amendment will fail.  Commissioner Burrows?

COMMISSIONER BURROWS: I offer Amendment Seven to recognize that the Commission's successful conciliation rate has increased over time, and that conciliation challenges have been less frequent and overwhelmingly unsuccessful since Mach Mining.

CHAIR DHILLON: Is there a second?  Hearing no second, the amendment fails.  Commissioner Burrows?

COMMISSIONER BURROWS: I offer Amendment Eight to amend the first full sentence on Page 6 of the preamble to read as follows:  “The Commission still believes that it's important to maintain a flexible approach to conciliation as Title VII requires and as the Supreme Court recognized in Mach Mining.”

CHAIR DHILLON: Is there a second to proposed Amendment Number Eight?  Hearing no second, the proposed amendment fails.  Commissioner Burrows?

COMMISSIONER BURROWS: I offer Amendment Nine to strike the proposal's unfounded speculation about respondents' reasons for not agreeing to settlement after a finding of discrimination by EEOC.

CHAIR DHILLON: Is there a second to proposed Amendment Number Nine?

COMMISSIONER LIPNIC: Second.  This is Commissioner Lipnic.

CHAIR DHILLON: Commissioner Burrows, would you like to speak in favor of your proposed Amendment Number Nine?

COMMISSIONER BURROWS: Yes, Madam Chair.  This proposal that we're considering today speculates about why some respondents refuse to agree to a settlement after a finding of discrimination by the EEOC.  The preamble goes so far as to suggest a “widespread rejection,” of the conciliation process and a broadly‑held view that conciliation does not meet its full potential in providing value to all parties.  Those sweeping assertions are not supported by any evidence or data.  It's irresponsible and misleading for the Commission to make broad unsupported claims about why respondents refuse to participate in conciliation or why conciliation efforts fail without any evidence to back up those assertions.

It's particularly troubling that this proposal is based on unfounded speculation when we are currently in the process of gathering specific concrete data about conciliation.  In February 2019, when then‑Chair Victoria Lipnic announced a conciliation project, the purpose was to review internal data and develop promising practices in the field.  Of course, that has continued.  Madam Chair, we thank you for that.  I do, very much, our office.  That is included in our current 2020 and 2021 budget justifications to Congress.  And we told Congress that the project is expected to conduct an extensive review of the conciliation process and to provide some comparative results.  It's my understanding that we continue to collect that data and intend to analyze it, but we certainly haven't had a chance to evaluate it.  And so, I'm troubled that there are these specific allegations included in speculations about why conciliation is currently reflecting the results that we see now.

When the priorities for 2020 were announced by the Office of the Chair, they expressed a commitment to use modern data analytics to facilitate data‑driven decision‑making.  I agree with that sentiment, and the Commission should honor that commitment, especially in something as fundamental as conciliation.  We should not regulate in the abstract where there's data available to inform our decision‑making. 

And, I do not agree with the conclusion that the Commission is solely to blame if conciliation is unsuccessful.  That's, I think, not fair to our excellent staff in the field who work tirelessly every day to advance this Agency's mission.  There are, of course, always a certain percentage of cases that do not conciliate for a multitude of reasons unrelated to EEOC's efforts.

Respondents may refuse to participate in conciliation because they disagree with the EEOC's findings, or they may be unwilling to change discriminatory practices or to provide monetary relief to the individuals harmed by those practices.

Respondents may also simply choose to roll the dice, knowing that the EEOC only litigates a tiny fraction of cases where discrimination is found.  For all these reasons, I think that we should hold off including discussions of the reasons why conciliation might fail.  And, although I had some trouble hearing at the beginning, I believe that the Legal Counsel noted that there's something like one‑third of employers or respondents, rather, who say immediately they have no interest in discussing conciliation after we find discrimination.

And while that may very well be that there is something the Commission has done to reach that result, I think it's just as likely, if not more so, that that reflects the folks we have found to discriminate sometimes don't want to stop discriminating.  And so, I think regardless of the reasons, I don't think it's appropriate to guess at those in this particular document at this stage.  And so, I therefore move that the Commission adopt Amendment Nine to strike the text from the preamble that speculates about respondents' reasons for not agreeing to settlement after a finding of discrimination by EEOC.

CHAIR DHILLON: Thank you, Commissioner Burrows.  Commissioner Lipnic, do you wish to speak to proposed Amendment Number Nine?

COMMISSIONER LIPNIC: Yes, Madam Chair.  The only thing that I would add is I do think the language here is fairly careful in saying that it just is suggesting a view of the process, the conciliation process.  So again, this ultimately will be both subject to review by OMB in terms of the preamble, and then also ultimately public comments, so, I don't think it's ‑‑ while there is certainly Commissioner Burrows' point that there is some speculation here, I think it's fairly worded in this preamble.  I yield back.

CHAIR DHILLON: Thank you, Commissioner Lipnic.  Again, we will conduct the vote by roll call on proposed Amendment Number Nine.  Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC: I vote no.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: I vote yes.

CHAIR DHILLON: And I will vote no, so Amendment Number Nine fails.  Commissioner Burrows?

COMMISSIONER BURROWS: Madam Chair, before we continue, I have a parliamentary inquiry with respect to the time.  Are we still in round one or round two?

CHAIR DHILLON: We are in round one.  When you offer amendments, it does not count against your time.

COMMISSIONER BURROWS: Right.  I just wanted to make sure I was understanding that correctly.  I would offer Amendment 10 to explain that ancillary litigation over EEOC's conciliation process diverts scarce resources from the statutory goal of eliminating discrimination.

CHAIR DHILLON: Is there a second?  Thank you.  Is there a second?

COMMISSIONER LIPNIC: Second.  This is Commissioner Lipnic.

CHAIR DHILLON: Thank you.  Commissioner Burrows, do you wish to speak in support of your proposed Amendment 10?

COMMISSIONER BURROWS: Yes, thank you Madam Chair.  Before the Supreme Court's unanimous decision in Mach Mining, employers were challenging the EEOC's conciliation efforts, frankly as a matter of course, whenever EEOC filed suit to correct unlawful employment practices.   The more egregious the discrimination, the more incentive employers had to challenge our conciliation efforts.  The result was that the EEOC was forced to conduct lengthy mini‑trials on conciliation before litigating the actual claims of discrimination. 

That turned the purpose of conciliation on its head by placing the burden on the EEOC to prove it had tried hard enough to resolve discrimination even though the employer, obviously, was the one discriminating.  As one appeals court put it, “the real burden of the statute is not upon the EEOC, but upon the discriminator.  Conciliation is not a one‑way street but entails the active participation of the alleged discriminator as well as the EEOC.”  Trial litigation about the EEOC's pre‑suit efforts distracts from Title VII's substantive mission and diverts the Commission's limited resources from enforcing the law to defending its processes.

As I noted, Mach Mining is a prime example of how focusing on the Commission's conciliation process undermines the statutory goal of eliminating discrimination.  Mach Mining's complaints about conciliation shifted the focus of the lawsuit from whether Mach Mining engaged in systemic hiring discrimination against women, which was clear, to whether the EEOC tried hard enough to remedy the company's discriminatory practices during conciliation.  As a result, Mach Mining continued to hire men only and women applicants denied jobs had to wait nine years for a paycheck.

This proposal would have the collateral consequence of reviving challenges to the EEOC's conciliation efforts and consuming yet again the Commission's all too scarce resources with needless and expensive litigation.  Frankly, I think that's a poor use of government resources and it will detract from our efforts to combat workplace discrimination.  And so, for that reason, I would ask the support of my colleagues for Amendment 10.

CHAIR DHILLON: Thank you, Commissioner Burrows.  Commissioner Lipnic, do you have anything to offer with respect to proposed Amendment Number 10?

COMMISSIONER LIPNIC: Yes, Madam Chair.  So, Commissioner Burrows raises an incredibly important point which we talked a little bit about in our opening, about the prospect of, if these regulations go final at some point, the prospect of there being a lot of ancillary litigation over the EEOC's conciliation process.  And that is a serious concern and I share that concern with my colleague. 

And I think that I'm not sure we will know the answer to that question, but certainly again I think getting some comment on these regulations, and certainly we've asked that question within the preamble, I view this as another step in the process to inform the Commission about the best actions that it can take.  But, it is certainly a legitimate concern raised by Commissioner Burrows.

CHAIR DHILLON: Thank you Commissioner Lipnic.  Again, for purposes of clarity of the record we will conduct a vote on proposed Amendment 10 by roll call.  Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC: I vote no.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: I vote yes.

CHAIR DHILLON: And I will vote no, so the amendment will fail.  Commissioner Burrows?

COMMISSIONER BURROWS: I offer Amendment 11 to clarify the Commission retains its statutory discretion to use in each case whatever informal means of conference, conciliation or persuasion it deems appropriate as the Supreme Court held in Mach Mining.

CHAIR DHILLON: Is there a second to proposed Amendment Number 11?  Hearing no second, the amendment fails.  Commissioner Burrows?

COMMISSIONER BURROWS: I offer Amendment 14, to conform the EEOC's regulations to Mach Mining and to preserve the EEOC's privileging when disclosing information to respondents in conciliation.

CHAIR DHILLON: Is there a second to proposed Amendment Number 14? 

COMMISSIONER LIPNIC: Hang on one second, Madam Chair.  I will second.

CHAIR DHILLON: Thank you Commissioner Lipnic.  Commissioner Burrows, would you like to speak in favor of proposed Amendment Number 14?

COMMISSIONER BURROWS: Yes.  I want to say that Amendment 14 would correct several significant flaws in the proposed regulations.  As currently drafted, the proposal requires EEOC to disclose extensive information to respondents in every conciliation.  The proposal's mandatory disclosure requirement would jeopardize our privileges, burn their enforcement and legal staff and encourage respondents that are uninterested in remedying discrimination to prolong conciliation for the sole purpose of obtaining information from the Commission.

First, the proposal jeopardizes the Commission's well‑established privileges.  Although the proposed guidelines pay lip service to the importance of safeguarding privileged information, the effect of the mandatory disclosure is to waive the Commission's privileges.  The proposal would require EEOC to turn over what amounts to its entire investigatory file and its factual and legal analysis to every respondent during conciliation.  The information EEOC would be required to disclose would jeopardize the Commission's deliberative process and attorney/client privileges.

The purpose of those privileges is to facilitate candid discussions within the Agency, encourage EEOC investigators to consult with the Agency's attorneys on difficult legal issues, and promote sound government decision‑making.  One of the most troubling provisions is the proposal to disclose information obtained during an investigation that might undermine EEOC's ultimate conclusion that discrimination occurred, which was reached after weighing all the evidence.  EEOC would also be required to reveal the privileged legal analysis relied on in concluding that discrimination occurred despite that information.

This new requirement would be unprecedented in American law.  Even in the criminal context where the government has a constitutional obligation to provide defendants with potentially exculpatory evidence, the government is not required to reveal its entire deliberative process, its theory of the case, or the legal analysis as to the relevance of that exculpatory evidence.  Requiring EEOC to reveal its internal deliberations will weaken the Commission's law enforcement role and is inconsistent with the ultimate aim of Title VII, to prevent and remedy discrimination.

Second, compliance with the proposed regulations would place an unacceptably heavy burden on the Agency's enforcement staff.  Each year, the Commission issues thousands of reasonable cause findings and invites respondents to voluntarily resolve unlawful employment practices in conciliation.  The pending proposal would require EEOC to provide extensive information to respondents in every one of those cases, regardless of the circumstances or the employers' interests in remedying discrimination.  Investigators and legal staff would need to spend hours drafting and revising conciliation disclosures to comply with the onerous regulations and protect the EEOC against the inevitable legal challenges to the sufficiency of the disclosures.

Given our limited resources and large inventory of pending charges, we should not be imposing this additional burden.  They are not required by the law, they're not required by Mach Mining, and they do not advance the goal of eliminating discrimination.  Finally, I'm concerned that the proposal that the EEOC identified all aggrieved individuals during conciliation will just expose employees to retaliation.  Employers are all too eager to know which of their employees spoke to the EEOC, and the proposal essentially forces the Commission to turn over a road map for potential retaliation. 

I'm also concerned that the requirement will have a chilling effect on the willingness of victims and witnesses to come forward, particularly in cases involving undocumented or vulnerable workers or survivors of sexual harassment.  Taking the public position that the Commission must turn this information over to respondents in every conciliation will significantly undermine our ability to enforce the statutes we're charged by Congress and the American people with enforcing.  The proposal, as currently drafted, will have a devastating impact on our mission of preventing and remedying discrimination.  Amendment 14 would ensure that the Commission provides respondents with enough information to encourage meaningful settlement discussions.  At the same time, it protects EEOC's privileges, preserves the Commission's law enforcement function and minimizes unnecessary burdens on our staff. 

Madam Chair, I have more to say on this issue, but I will reserve that for my second round of debate on Amendment 14.

CHAIR DHILLON: Thank you, Commissioner Burrows.  I'm not sure what you're referring to by your second round of debate on Amendment Number 14.

COMMISSIONER BURROWS: Yes, thank you.  With respect to the Commission's rules, we have two rounds of debate, five minutes each, and this one because I've got about somewhere in the neighborhood of 15 seconds, it seems better to stop there and wait for the second round.

CHAIR DHILLON: Alright, thank you for that clarification.  Commissioner Lipnic, do you have anything to add with respect to proposed Amendment Number 14?

COMMISSIONER LIPNIC: I do not, Madam Chair.

CHAIR DHILLON: All right, so we'll call for a roll call vote.  Commissioner Lipnic, how do you vote on proposed Amendment 14 ‑‑

COMMISSIONER BURROWS: I'm sorry, Madam Chair, I would like to issue an objection with respect to the second round of debate on Amendment 14.  I'd like to conclude my remarks.  My understanding under the Commission's rules, under Robert's Rules as we have followed them, that there are two rounds of debate with respect to each matter called up, and we have had one, each round being five minutes.  I spoke for approximately four minutes and 40 seconds in the first round and would like to have the opportunity to have a second round of debate with respect to Amendment 14 before the vote is called.

CHAIR DHILLON: So, Commissioner Burrows, just to clarify, the rounds of comments and questions is separate from the process of debating amendments.  If you have additional comments to offer in support of your Amendment Number 14, I invite you to do so now.

COMMISSIONER BURROWS: Thank you for that clarification, Madam Chair.  I would like to just add that the proposal's preamble states that its purpose is, and I'm quoting, “not to provide an additional avenue for litigation by respondents or charging parties.”  It further states that they're intended to track the requirements of Mach Mining.  This proposal far exceeds what the Supreme Court said the Commission must do in Mach Mining and would expose the Commission to costly and time‑consuming litigation about our conciliation processes.

Title VII states that if the Commission finds reasonable cause to believe that discrimination occurred, it shall endeavor to eliminate such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion.  In Mach Mining, the Supreme Court unanimously recognized that Title VII gives the Commission expansive discretion to determine the kind and extent of discussions appropriate in a given case.  The proposed guidelines outline steps that the Commission will take in the conciliation process, stripping the EEOC of its statutory discretion to use whatever informal means of conciliation it deems appropriate in a specific case.

Further, the proposal has these disclosure requirements that far, far exceed what the Supreme Court said we must do to satisfy Title VII.  It requires that we give respondents all of the information the employer requested in Mach Mining, which the Supreme Court unanimously said we need not do, including a detailed explanation of the factual and legal basis for our findings, identification of all victims of the discriminatory practice at issue, and calculations for any monetary relief.  But, by imposing requirements that go far beyond even what was asked in Mach Mining, much less imposed, this proposal opens us up to litigation on whether we complied with our own rules.

And it calls into question what is now settled law and exposes the EEOC to expensive and time‑consuming mini‑trials.  And so, I think that we need to be careful about turning back the clock to the pre‑Mach Mining days, particularly when we are going to be turning over information that we have not only no legal duty, but that would affirmatively harm our ability to succeed at trial if, in fact, we are successful, the conciliation fails.

So, it would essentially have the perverse effect of incentivizing respondents who have really no interest in remedying discrimination to simply prolong the process so that they can obtain privileged information to use against EEOC at trial.  Currently respondents who believe they did nothing wrong or have no intention of changing their ways simply decline to participate in conciliation.  The proposed guidelines create incentives for them to drag out the process to gain an unfair advantage in later litigation against the Agency.

While I believe that most respondents currently engage in conciliation in good faith, this proposal would encourage every respondent to drag out conciliation just to find out what EEOC learned in its investigation, including the identities of alleged victims and witnesses, and to do so not for the purpose of correcting discrimination, but solely to prepare a defense for court.  Instead of a mutual dialogue to remedy unlawful discrimination, respondents will view conciliation as a chance to obtain free discovery at EEOC's expense.  Amendment 14 assures that EEOC complies with its obligations under Title VII without sacrificing our hard‑fought victory in Mach Mining and exposing us to needless and expensive litigation.  I urge my colleagues to adopt Amendment 14.

CHAIR DHILLON: Thank you Commissioner Burrows.  We will now vote by roll call on proposed Amendment Number 14.  Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC: I vote no.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: I vote yes.

CHAIR DHILLON: And I vote no.  Amendment 14 fails.  Commissioner Burrows?

COMMISSIONER BURROWS: I offer Amendment 13 to clarify that the EEOC retains discretion to modify its general conciliation process based on the circumstances of an individual case.

CHAIR DHILLON: Is there a second to proposed Amendment Number 13?  Hearing no second, the motion fails.  Commissioner Burrows?

COMMISSIONER BURROWS: Yes, I would like to offer Amendment 15, to strike unnecessary and confusing text.  It's a technical amendment that concerns the language on waiver of EEOC privileges.

CHAIR DHILLON: Is there a second to proposed Amendment Number 15?

COMMISSIONER LIPNIC: Second.

CHAIR DHILLON: Commissioner Burrows, would you like to speak in favor of your proposed amendment?

COMMISSIONER BURROWS: Yes, Madam Chair, thank you.  Just very briefly, Amendment 15 would make a technical correction to clarify the language on Page 16 in proposed Section 1626.12(c).  There's a reference to waiver in the guidance.  There's a reference that the Commission will not disclose information in conciliation where the information is protected by privilege, and there is no waiver of the applicable privilege.  This amendment would simply end the sentence after the word privilege.  It's, at least to me, confusing, as written, because information is never protected, of course, by privilege if the privilege has already been waived.

And so, to clarify, I would just move to strike the unnecessary text.  I would hope that this technical amendment could be agreed upon unanimously.

CHAIR DHILLON: Alright, we'll do this by roll call vote again.  Commissioner Lipnic, how do you vote on proposed Amendment Number 15?

COMMISSIONER LIPNIC: I vote yes.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: I vote yes.

CHAIR DHILLON: And I vote yes, as well, so the amendment passes.  Commissioner Burrows, do you have any further amendments?

COMMISSIONER BURROWS: I do.  There's a parallel amendment, Amendment 15(a) that makes exactly the same change as 15, but where it appears in a different place in the text.  So, again, a technical amendment to strike the superfluous language.

CHAIR DHILLON: And where does it appear in the text?

COMMISSIONER BURROWS: I'm sorry.  For purposes of the record, this is 1626.12(e), I believe.  It appears both in 12(c) and in 12(e).  I believe the prior amendment would have struck it from 1601.24(e) in 15, and 15(a) addresses the language in 1626.12(c).

CHAIR DHILLON: Thank you.  Is there a second?

COMMISSIONER LIPNIC: Second.

CHAIR DHILLON: All right, we will do this by purposes of a roll call vote.  Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC: I vote yes.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: I vote yes.

CHAIR DHILLON: And I vote yes.  The amendment carries.  Commissioner Burrows, do you have any further amendments?

COMMISSIONER BURROWS: I would like to offer Amendment 16 to clarify that the guidelines would not create any substantive or procedural rights enforceable against the United States.

CHAIR DHILLON: I'm sorry, is there a second?

COMMISSIONER LIPNIC: Second.

CHAIR DHILLON: Commissioner Burrows, would you like to speak in favor of your proposed Amendment 16?

COMMISSIONER BURROWS: Yes, briefly.  This would amend 1601.24 in the part that's entitled Conciliation Procedure and Authority on Page 12 of the proposal by inserting after Paragraph F a new Paragraph G, which would state as follows: This document is intended solely to improve the Commission's internal management and is for the use of EEOC personnel only.  As such, it is not intended to, and does not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies or other entities, its officers or employees, or any other person.

This language is adapted from text included in the Commission‑approved NPRM implementing Executive Order 13891 on Public Notice of Sub‑Regulatory Guidance, and it's therefore appropriate to include here, as well.  The Commission's conciliation procedures are and have always been a matter of internal Commission process to manage how charges and cases are conciliated pursuant to Title VII's mandate.  And, as I noted earlier, the Supreme Court has made that crystal clear since Mach Mining.  These guidelines are merely for EEOC employees' reference while working to conciliate matters.  The proposed guidelines, therefore, only relate to our internal management and are only to be relied on by employees and other personnel.

Therefore, the proposed guidelines cannot create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States.  And that language is often included in various executive orders and, as I mentioned before, in an NPRM that this Commission has recently approved.  It's crucial that we include the language, just to ensure that the public understands these guidelines do not in any way provide any legal or equitable recourse because they do not create rights for any third party.  I urge my colleagues to support Amendment 16 to clarify that the proposed guidelines on conciliations do not create substantive or procedural rights against the United States.

CHAIR DHILLON: Thank you Commissioner Burrows.  Commissioner Lipnic, do you have anything to offer concerning proposed Amendment Number 16?

COMMISSIONER LIPNIC: I would add to what Commissioner Burrows has just said that I'm not sure that this is the appropriate place for where Commissioner Burrows is suggesting this be added; but she does raise an interesting concern.  And so, I would suggest, Madam Chair, that this point be something that is discussed with OMB in the review process.  That's all, thank you.

CHAIR DHILLON: We will conduct the vote by roll call.  Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC: I vote no.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: I vote yes.

CHAIR DHILLON: I vote no, so proposed Amendment Number 16 fails.  Commissioner Burrows, do you have any further proposed amendments?

COMMISSIONER BURROWS: I do.  I'm not sure that I have sufficient time left in the first round to conclude them, but I certainly do have additional points to make.  So, if you prefer, I can reserve them for the second round.

CHAIR DHILLON: That's fine.  We will now proceed.  I will offer some comments on the proposed NPRM.  As I've noted earlier, I believe it's appropriate to establish clear parameters equally applicable to conciliations across the board, and that such parameters would contribute significantly to establishing a reliable process which both respondents and charging parties can trust.  I understand and value the ability of our field offices to manage particular conciliations in particular ways based on their unique understanding of the particular issues at hand and any other relevant factors that may be in play, as well as their relationships with the parties.

At the same time, I do believe that it has come time for the Commission to establish clear expectations for a consistent conciliation process.  I believe that will engender more trust in our process and ultimately resolve a larger number of our cases being successfully conciliated.  With that, we will move to the second round of comments or questions, and I offer the floor to Commissioner Lipnic.

COMMISSIONER LIPNIC: I have nothing further at this time, Madam Chair.

CHAIR DHILLON: Thank you.  Commissioner Burrows?

COMMISSIONER BURROWS: Thank you Madam Chair.  This is the most important measure the Commission has considered since I joined this body in 2015.  The sweeping changes the Commission is considering today are a solution in search of a problem and they would break what the Supreme Court fixed for us in 2015.  The proposal assumes that changes to conciliation are needed because we have resolved less than half of the charges where a reasonable cause finding has been made.  The proposal also suggests that the new guidelines will ensure compliance with Mach Mining.  Both of those suggestions are misguided.

First, the rate of conciliations has been increasing for the past decade.  From 2006 to 2010, less than a third or about 29.7 percent of the charges where the Commission found reasonable cause to believe discrimination occurred were successfully resolved in conciliation.  In the four years prior to Mach Mining, so fiscal years 2011 to 2014, 36.7 percent of all reasonable cause findings resulted in successful conciliation.  In the four years since, so fiscal years 2016 to 2019, the successful conciliation rate has increased again to 14.2 percent, so increased over the past decade.  The EEOC also tripled its success rate for conciliation of systemic matters from 21 percent to between 45 and 64 percent over the last decade.

The proposed guidelines are based on the flawed premise that the Commission's success should be measured primarily, if not exclusively, by how many cases it settles, and that any failure to settle is always the fault of the EEOC.  The truth is, some employers that engage in discrimination are not going to stop simply because we ask them to, no matter how nicely we ask them to.  And it's naive to assume otherwise.  Moreover, the EEOC's statutory mandate is not to settle cases at any cost.  Our mission is to eradicate discrimination, and it is simply unrealistic to think that every respondent, or even a majority of them, that is found to have engaged in discrimination will agree to take the steps necessary to end discrimination and prevent future violations.

Second, the proposed guidelines are unnecessary to ensure compliance with Mach Mining.  Since Mach Mining, the EEOC's rate, as I mentioned earlier, of successful conciliations has increased, and legal challenges to the Commission's conciliation efforts have become less frequent.  Moreover, we're winning those challenges almost uniformly.  The proposed guidelines are therefore seeking to correct a problem that simply does not exist.  I would also ask, because this is such an important measure, and I frankly had difficulty hearing most of what the Legal Counsel's presentation, I would request that that presentation be posted online on the Agency's website because it's not clear to me that the public was able to catch that.  I certainly was not able to hear most of it.

I will move that the Commission post that statement after this meeting.

CHAIR DHILLON: I will take that under advisement, Commissioner Burrows.  Do you have anything further?

COMMISSIONER BURROWS: I do.  I mean, I think that at this point, it makes sense for us to really consider, quite frankly, whether or not it made sense to have Brooke Petkas and other women wait nine years in Mach Mining for relief in that case.  There was clear discrimination.  The company had never hired a single woman, and yet we had to go all the way to the Supreme Court, talking about everything except that, just back and forth about conciliation.  And I think that before we take this vote, we have to seriously consider what we would say to Brooke and people like her who will be back in that same situation waiting almost a decade for basic justice.  And so, on that note, Madam Chair, I would say I simply urge my colleagues to reject this very flawed proposal.  I yield back the balance of my time.

CHAIR DHILLON: Thank you, Commissioner Burrows.  We will now proceed to a vote on the proposed NPRM on conciliation as amended by Amendments Number 4, Number 15, and Number 15(a).  I move to adopt the NPRM as amended.  Is there a second?

COMMISSIONER LIPNIC: This is Commissioner Lipnic, second.

CHAIR DHILLON: We'll take a roll call vote.  Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC: I vote yes.

CHAIR DHILLON: Commissioner Burrows?

COMMISSIONER BURROWS: I vote no.

CHAIR DHILLON: And I vote yes, so the motion is adopted.  I want to thank my fellow commissioners, as well ‑‑

COMMISSIONER BURROWS: Madam Chair, before we conclude, pardon the interruption, I do have a privileged motion which takes precedence over other business.  And so, I'd like to offer a resolution and move that it be made a special order for future Commission consideration of the conciliation proposal.  That resolution is as follows: Resolved that for future votes on the conciliation proposal, the Commission shall fully respect and follow previous Commission‑voted review and voting procedures outlined in EEOC Order 150.002 on the Government in the Sunshine Act, which the Chair purported unilaterally modified on August 7, 2020, to eliminate the requirement that the Commission must hold a public meeting when requested by any commissioner.

CHAIR DHILLON: Commissioner Burrows, that is not the nature of a privileged motion.  Moreover, because it was not noticed in our notice announcing this meeting, it would violate the Sunshine Act for the Commission to consider it.  We have to publish the ‑‑

COMMISSIONER BURROWS: Madam Chair, this ‑‑

CHAIR DHILLON: ‑‑ vote on.  And that, Commissioner Burrows, is not the form of a privileged motion.

COMMISSIONER BURROWS:  Pardon me, Madam Chair.  This proposal, just to clarify, the privileged motion is in order because it goes to the rights of the body and indeed, it is prescriptive solely to future consideration of the very proposal that was defined as the subject of this particular meeting in the notice issued to the public.  It's properly brought under Roberts' Rules as a privileged motion specifically to call for a special order and I direct the Chair to Roberts' Rules 11th Edition, Sections 2 and 19, Pages 15 to 17, 25 to 26, and also 227. 

I would also direct you to Section 41 on Pages 355 and 356, privileged motions do take precedence over other matters, and they go to the rights of the body.  It is classic, and as the rule states in Roberts Rules, a main motion to make a particular subject a special order can be introduced whenever business of its class or any business is in order and nothing is pending.  It can be offered in this form.  I offer the following resolution and move that it be made a special order.  That's exactly the statement that I've made and there was no question pending.  And as such, my motion is proper.

CHAIR DHILLON: Commissioner Burrows, I will rule your motion out of order.  In 1973 the Commission approved a motion whereby meetings would be governed by Roberts' Rules of Order except where there is a statute or policy of the condition that is inconsistent with Roberts' Rules.  (Inaudible) the reason it is out of order is because it violates the Sunshine Act, which as the Commission has previously decided by vote, supersedes Roberts' Rules of Order.  I rule your motion out of order.  And with that, I would like to thank ‑‑

COMMISSIONER BURROWS: It is not out of order and I appeal the ruling of the Chair.

MAUNZ: Hello, this is ‑‑

CHAIR DHILLON: Very well.  Is there a second to the appeal?  Hearing no second, your appeal fails.  With that, I would like to thank my fellow commissioners, as well as the staff of the Commission, both for their work in preparing this meeting and for the fine work that they are doing every day.  Thank you.  This meeting is adjourned.

(Whereupon, the above-entitled matter went off the record at 2:24 p.m.)