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  4. Meeting of January 7, 2021 - Transcript

Meeting of January 7, 2021 - Transcript

 

This is a preliminary, rough transcript. A certified transcript is being prepared and will be posted here when it is available.

Dhillon: Good afternoon everyone, and welcome to a meeting at the Equal Employment Opportunity Commission. The meeting will now come to order. 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. Welcome, and thank you to my fellow commissioners, the EEOC staff and members of the public who are participating by phone.

To access our closed captioning service, please go to our website, www.eeoc.gov/newsroom and click on the link. Before we begin our deliberations, I would like to briefly offer my thoughts on the events at the US Capitol yesterday. The EEOC’s headquarters sits in the shadow of the Capitol, a symbol of the democratic process our nation was founded upon. Indeed, the EEOC is a product of our nation’s endearing struggle to uphold the underpinnings of any democratic society, liberty, justice, and freedom.

When those values are threatened as they were yesterday, our democracy is threatened. The import of a peaceful transition of power to this country's democratic ideals was brought home to us yesterday. Perhaps some of us took it almost for granted, but after yesterday's events, no longer. Instead, we are reminded of the fragility of our democracy and the responsibility that we all share to protect it.

To EEOC employees who have been witnessing these events, know that the work that you do every day represents this agency's unshakable commitment to uphold the core values that our nation aspires to, and that we will continue to do that work unfailingly and newly reminded of its significance.

With that, I will now turn to the substance of our meeting. I want to begin by thanking all of the EEOC employees who have worked diligently to prepare this meeting, including my staff, the staff of my fellow commissioners, The Office of Legal Counsel, The Office of Information Technology, The Office of Communications and Legislative Affairs, and the executive secretariat.

We would like to briefly review 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 of the meeting on the EEOC’s website at eeoc.gov. As a presiding officer, I will regulate the course of the meeting and dispose the procedural matters. While this meeting is open to the public, remarks and questions will not be taken from the audience.

The purpose of today's meeting is to deliberate and vote on the following three matters: a final rule updating the commission's conciliation procedures, a formal opinion letter concerning individual coverage health reimbursement arrangements under the ADEA and a final rule amending the commission's official time regulation for the federal sector. The meeting will be divided into three sessions and each of the matters will be considered independently in its own session.

Before we begin the first session, each commissioner may give an opening statement if he or she so chooses. We will then proceed to the first session. At the beginning of each of the three sessions, a representative from the Office of Legal Counsel will provide a summary of the item and will be available to answer the commissioners’ questions. I will then call upon each commissioner to address the matter at issue. We will have two rounds of comments and questions from each commissioner during each session.

During these rounds, commissioners may post questions to the presenter and offer his or her own comments and observations. If a commissioner seeks to amend an agenda item, he or she must offer that amendment while he or she has the floor. If the motion to amend is seconded, we will move to a debate on the proposed amendments.

After the amendment is voted on, we will resume debate on the underlying agenda item, which may or may not have been amended. We will now begin with opening statements. We will begin with Vice Chair Sonderling, followed by Commissioner Burrows, Commissioner Samuels, Commissioner Lucas, and then myself. Vice Chair Sonderling.

Sonderling: Thank you, Chair Dhillon. I echo your statements on yesterday's event. That was beautifully said. Today we meet to consider three important matters. I want to thank the commissioners and their staff and the EEOC staff for all their hard work. I'm well aware of how much time and effort went into these documents, especially over the holiday season.

First, I am strongly supportive of the final rule, updating the commission's conciliation procedures. Importantly, the commission owes a great deal of gratitude to those of you in the public who took time to submit comments on this important proposal. Congress endowed the commission with an array of powerful tools to prevent and remedy employment discrimination, including the specific requirement to conciliate.

Once the commission determines there is reasonable cause to believe a charge of discrimination, the commission must attempt to resolve the matter using conciliation. Commission has not changed its conciliation rule significantly since establishing the procedures more than 40 years ago. Accordingly, this updated rule provides commonsense updates to the conciliation procedures. Its provisions advanced the most important principals by which we strive to carry out the commission's vital work, transparency, consistency, and fairness.

After carefully reviewing the submitted comments, I am convinced that updating the conciliation procedures is important not only for good governance, but for the EEOC and the parties to reach timely and fair conclusions of charges prior to litigation. In short, pursuant to the final rule, the commission will provide basic information to respondents during conciliation, the essential facts and the law supporting the claim, findings and demands.

By sharing this information, I'm confident the commission will further support its reasonable cause findings and demonstrate the strength of commission’s cases. Why is this final rule so crucial? It directly addresses a disconnect that can occur during conciliation. Namely, the commission may make a demand and not fully explain or provide support for the commission's position. In turn, the respondent cannot properly evaluate the merits of the commission’s demand or risk what they may face in litigation.

As you can imagine, this disconnect makes it less likely that conciliation will succeed. Accordingly, the final rule will be a catalyst for better communication between the commission and respondent, thereby helping the parties to narrow the issues, manage expectations, ultimately reach a meeting of the [00:07:20 inaudible]. The final rule is good news for all interested parties, but I especially want to highlight the real-world benefits for charging parties.

The commission can only litigate a small number of cases that fail conciliation. This means, in most cases when conciliation fails, workers must navigate in a pain relief through litigation. As a result, many simply choose not to sue or be left to proceed without legal counsel. Here's the bottom line for charging parties. Thanks to the final rule, more victims of discrimination will obtain relief faster. For respondents, the final rule will provide the information needed to decide whether it is in their best interest to settle the matter or litigate.

Second, I am pleased to support the opinion letter concerning individual coverage health reimbursement arrangements pursuant to the ADEA. This opinion letter is a textbook example of why opinion letters are so valuable. Requests stated that solving this issue detailed in the letter is imperative and vital to ensuring that health reimbursement arrangements do not violate federal anti-discrimination law.

The opinion letter provides important clarifications regarding the interplay of the ADEA and defined contribution and healthcare reimbursement arrangements. Based on my previous experience, reimplementing the issuance of opinion letters at the US Department of Labor, I believe opinion letters are one of the most effective ways agencies can provide timely and meaningful guidance to employees and employers.

A friendly reminder that the EEOC announced its new process for requesting formal opinion letters through the EEOC’s website. We strongly encourage anyone interested in submitting an opinion letter to do so.  Third, I support the final rule regarding the commission's official time regulation for the federal sector. The final rule clarifies the federal service labor management relations statute is the sole source of official time for federal government employees who serve as union officials.

This clarification will provide unions and agencies with greater clarity when negotiating official time during collective bargaining. Most importantly, the final rule will allow agencies to make sure they have enough workers available to serve the public taxpayers and carry out their respective missions.

Thank you again, Chair Dhillon, my fellow commissioners, and those at the EEOC for their continued outstanding work to carry out our vital mission. I look forward to hearing the thoughts of my fellow commissioners on these important issues.

Dhillon: Thank you, Vice Chair Sonderling. Commissioner Burrows, I offer the floor to you for an opening statement.

Burrows: Good afternoon. This meeting comes just one day after violent protectors stormed the US Capitol in an effort to prevent the peaceful transfer of power after presidential election. It was a literal and figurative assault on our most precious democratic values and institutions. Americans are shocked by the spectacle and desperately want to seek government officials finally begin working together across party lines in the public interest.

I would hope that can happen here today. Unfortunately, the US Equal Employment Opportunity Commission, the principle federal agency charged with protecting the rights of working men and women to be free from discrimination in employment is considering three proposals that together would undermine civil rights and workers' rights that are critically important to the American people.

Next week, we will vote on proposals that would needlessly debilitate our filing of even the most routine civil rights cases and further undermine the agency's ability to protect working men and women. Many of these initiatives are ablated and futile attack on bedrock civil rights and workers' rights that the American people have built over decades. One or two actually seek to address a real problem, but they have been so rushed or so poorly executed that they are not worthy of serious consideration.

Our dedicated career staff and the staff in our own offices have worked overtime right through the holidays to support this partisan voting blitz in the waning days of the lame duck administration. It's shameful and it's not going to work, regardless of whether the commission makes the mistake of adopting these proposals today, they will be misleading. The public opposition is so strong and the flaws in most of them so obvious, they will be struck down by Congress or the court before the ink dries.

I respect this institution. I respect each of my colleagues. I am always open to a debate and discussion and I will always seek bipartisan agreement and compromise, but the proposals commission is considering today are wrong morally and legally. They undermine our mission to prevent and remedy discrimination. As the sole member of this commission, who is a person of color, I want to be completely clear about that.

There are many pressing needs that this commission should address instead of seeking to undermine the very rights we are charged with protecting. The EEOC is well positioned to address the root causes of systemic discrimination and it's urgent that we do so, but that's not on our agenda. I have repeatedly asked that we hold a public meeting on the civil rights implications of the pandemic. That's not on our agenda either.

The national death toll from the pandemic now stands at more than 350,000, but the full commission has never come together to collectively address that life or death issue. Despite my strong opposition to the proposals that are on today's agenda, I believe we could have reached a bipartisan agreement, at least as to the conciliation document, had we stayed at the negotiating table longer.

I do want to acknowledge my colleagues on the other side of the aisle for several important improvements in this latest version of the conciliation proposal, but the [00:13:13 inaudible] flaws remain. It virtually guarantees that the rare cases when litigation is necessary, our cases will be delayed by wasteful and collateral disputes, unrelated to the merits of the discrimination.

The second item on our agenda is an opinion letter designed to provide a defense to liability if the individual entity that requested the letter is sued for age discrimination when adopting individual coverage health reimbursement arrangement. That may very well be something that would be useful for us to do, but not in this timeframe so I will oppose it because the rushed nature of our consideration in the midst of a pandemic makes it irresponsible to do otherwise.

The final agenda item, which would eliminate the long-standing guarantee of official time for union representatives during the EEOC process will harm thousands of federal workers and it's simply abomination so it should be withdrawn. I hope that this commission will rethink its current path and I look forward to our debate.

Dhillon: Thank you, Commissioner Burrows. Commissioner Samuels, I offer the floor to you for an opening statement.

Samuels: Thank you, Chair Dhillon, and good afternoon to my fellow commissioners, to our legal counsel and to all of you who are listening in. As all of us have noted, we meet today in the aftermath of historic events that have shaken our Capital and our country. The ransacking of the Capitol building, the violence and the senseless loss of life are shocking, saddening, and outrageous. Our hearts go out to everyone who is suffering as a result of the deeply troubling events.

This unrest and violence remind us of the high cost of senseless partisan division. Extreme partisanship and polarization threatened the very foundation of our democratic Republic and betray our most cherished national values and ideals, the rule of law, equal protection of the laws, free and civil civic discourse and debate and peaceful transitions of power.

Just as Congress, we convened in the wake of yesterday's chaos to continue with the important work of our nation, so too do we return today to the sacred mission entrusted to the EEOC, the eradication of unlawful employment discrimination and the promotion of equal employment opportunity for workers in America.

Congress established the EEOC as a bipartisan commission and over the decades of our history, the commission has established a well-earned reputation for putting fairness and good government ahead of ideology. We can and we’ll disagree often shortly, we should stick to our respective principles and values, but let us also keep in the forefront of our minds, the purpose, history, and legacy of this august institution.

I feel we're falling short of that goal today. The issues we consider are complicated and consequential, and yet we rushed to promulgate regulations and policy documents at the 11th hour of this administration, we’ve been denied the time and opportunity to thoughtfully study, collaborate and debate the matters.

Rather than strengthening internal processes and civil rights protections, these hastily drawn documents stand only to undermine the effectiveness of our law enforcement efforts. These proposals are not based on evidence that they will solve the asserted problems that they purport to address, or indeed that the problems are real at all. I agree that in many cases, the changes opened the door to new albeit perhaps during unintended harm.

I'll address each of today's agenda items during subsequent rounds. For now, I'll just say that I have significant concerns with each of them that I wish we could work together to resolve. Any conciliation rule must protect our hard-fought Supreme Court victory in Mach Mining and safeguards of flexibility and discretion that are so essential to achieving our ultimate mission, the elimination of workplace discrimination.

The rule we consider today is premature. It appears arbitrary and capricious, and it does not adequately serve our core goals. The issues addressed in the opinion letter deserves significant further consideration, but we should not issue legal interpretations in this critical area, which will affect older workers’ access to health insurance in the middle of a global pandemic without public input. We should be doing it when we do through a generally applicable guidance, rather than through the opinion letter vehicle the commission has chosen.

Finally, we should disapprove the proposed final rule on official time. This rule would open decades of commission policy and practice and settled expectations. It is a blatant anti-union effort that will harm central sector complainants and disrupt and undermine EEO enforcement efforts throughout the federal government.

While we fail to seek relevant stakeholder input on [00:19:03 inaudible] matter, we also decline to give weight to the overwhelming opposition to the proposed official time rule voiced by members of Congress, former EEOC employees, union officials, civil rights groups, and thousands of members of the public at large.

These comments raised serious concerns that have not been addressed in a final rule that would adopt the proposed rule without any changes whatsoever. We should not and cannot condone one sided policies that unfairly benefit employers and business interests and unfairly disadvantage employees. That is not the way our bipartisan commission should operate.

If we allow it to do so, we fail in our mission to advance equal opportunity for all. I, therefore, urge my colleagues to keep these principles in mind as we debate and cast votes today. That said, I look forward to our discussion this afternoon. Thank you, Madam Chair.

Dhillon: Thank you, Commissioner Samuels. I offer the floor to Commissioner Lucas for an opening statement.

Lucas: Thank you, Chair Dhillon. Good afternoon, everyone. I echo the comments of my colleagues rightfully condemning intolerable conduct of individuals at the Capitol yesterday. Violence and attacks on our democratic institutions have no place in this country. It cannot be accepted from anyone for any reason.

That said, I think it is important for the continuity of government and to continue our roles to move forward with this important meeting on topics despite the upset of yesterday, just as the Senate did last night. Today, we are voting on three important matters, two final rules, one dealing with the conciliation procedures and the other with the commission's official time regulations to the federal sector, as well as a formal opinion letter concerning ICHRA under the ADEA.

I want to express and echo my appreciation that other colleagues have expressed on both sides of aisles for engaging on these important matters over the past weeks and months. In particular, I greatly appreciate the opportunity to work collaboratively as well as in a bipartisan fashion with my fellow commissioners during the drafting process of a final conciliation rule, even, and especially though I know that my Democrat colleagues generally are not inclined to ultimately support the rule.

As a global matter, if approved, I believe that the two rules that are before the commission for consideration today will promote efficiency and good governance, as these with the commission and the broader federal government will be improved and we and other federal agencies will be better able to serve the public and carry out our critical missions. Likewise, I believe that the commission entrusting ICHRA via a formal opinion letter as opposed to other methods also facilitates good governance.

Opinion letters in general, as is evidenced in the specific letter before us provide much needed clarity and valuable compliance assistance to stakeholders and our statutory provider vehicle that Congress specifically intended for Senate confirmed commissioners to use and be held accountable for. I applaud Chair Dhillon for reinvigorating this process during her tenure as Chair after this practice has lapsed, since then Sharon now Justice Clarence Thomas’s tenure.

With specific respect to our final conciliation rule, this rule revises the commission's procedures to make conciliation a more effective mechanism to halt and remedy unlawful discrimination, discriminatory employment processes in a greater percentage of charges without litigation. It implements requirements regarding the information that the commission must provide in preparation for, and during conciliation, specifically with respect to its findings and demands.

Simply put, the rule will ensure the commission provides the essential facts and law supporting the claims, findings and demands. They'll facilitate the identification of the specific discriminatory practices that issue and enables respondents to properly evaluate their potential liability. In turn, this will facilitate voluntary compliance and prospective remedial actions.

I am sensitive to the assertion by some, including my colleagues that this rule simply is for the benefit of the business community. It is not an improved and clear conciliation process that will result in more resolutions providing relief to victims of discrimination. Importantly, it will especially benefit the most vulnerable victims of discrimination, those who do not have the means, knowledge, or ability to obtain a lawyer and that's for whom the risks and costs monetary and otherwise of litigation are significantly higher than for many employers.

With respect to the opinion letter at issue, I've heard no substantive objections by my colleagues, either in this meeting or in prior discussions or if they wish to engage more with outside stakeholders on this matter. However, it is my understanding this letter was actually the direct result of three attorney collaboration between the tri departments in the EEOC and already reflects the input of the key stakeholders here.

This letter provides important guidance on whether the issue of whether an employer may offer its employees and ICHRA as a defined contribution for the purchase of an age rated individual major medical health insurance policy under the ADEA. I commend our hardworking career staff for their cross-agency efforts to bring clarity to a technical issue and hopefully enable more people to get health insurance.

In my opinion, the position we've taken in this letter, although on a technical topic is also my base on a plain straightforward reading of the relevant provisions of law. The speculation that someone somewhere may have a concern should not overcome a plain text reading and the value of bringing certainty to companies and employees’ certainty that will facilitate employers providing valuable benefits to employees. I see no reason to delay when we have taken such an approach.

Finally, our official time rule eliminates that duplicate source of official time for union officials, but it's outside of the statutory scheme enacted by Congress in the Federal Service Labor Management Relations Statute. This is a reasonable rule that will bring clarity and efficiency by harmonizing EEOC regulations with the FSLMRS and will ensure that our regulations do not infringe on the statutory scheme laid out by Congress.

It will provide clarity for union officials and federal agencies as to the aspects of official time that need to be handled during collective bargaining and importantly, we have heard from multiple federal agencies, this rule provides predictability and stability for agencies in the management of the federal workforce. Agencies will be better able to plan and forecast staffing needs based on the agreements negotiated during collective bargaining. This certainty will allow agencies to better serve the public and fulfill their respective missions. Thank you.

Dhillon: Thank you, Commissioner Lucas. I will now give an opening statement. I support all three matters that are on the agenda here today, and I will elaborate more on the basis and reasons for my support during each round. I would like to address the background of each of these items as we head into our deliberations.

With respect to the proposed final rule updating the commission's conciliation procedures, this is the commission's second public meeting on this subject. The first public meeting was held in August and the then existing commissioners debated the proposal at length. This is actually the third time that this particular proposal is before the commission for a vote. The proposed final rule was put out for public comment and a variety of stakeholders provided input into the document, which resulted in changes in the final product, as we will discuss.

With respect to the consideration of the opinion letter, I know the Congress explicitly gave the commission the authority to issue opinion letters, and I believe that they are a valuable tool that the commission should use in appropriate circumstances to provide clarity to stakeholders on particular issues that fall within our purview. I note that there are areas where the commission does not have substantive, rulemaking authority, Title VII, being one of them. We have procedural rule making authority, but not substantive rulemaking authority.

I believe that when Congress structured the EEOC and gave it its authority, it carefully balanced the types of authority that it's thought to have the commission issue. I think that the use of opinion letters is appropriate. In this particular instance of this letter, this was a letter that grew out of inquiries that came from the tri departments to our career staff in The Office of Legal Counsel. The Office of Legal Counsel engaged in careful analysis in consultation with their colleagues at the tri agency.

It is that process that has ultimately led to the opinion letter that is under consideration. I express my thanks for the hard work and careful attention that the lawyers in The Office of Legal Counsel have paid to this matter and in particular, I want to recognize Ray Peeler and Aaron Konopasky for their excellent work. With respect to the final item on our agenda today, the proposed final rule amending the commission's official time regulation for the federal sector.

This NPRM was originally published in the Federal Register in December of 2019 over a year ago. It went through two rounds of public comment, with the document being out for consideration for 60 days. I believe that the matter has received ample attention and ample input, and it is now ripe for a decision by the commission. With that, we'll move to our first session, which is the consideration of the proposed final rule updating the commission's conciliation procedures. I'll offer the floor to our legal counsel, Andrew Maunz to address this proposal.

Andrew: Thank you Chair Dhillon. Now before the commission for consideration is a final rule that amends the commission's conciliation procedures for Title VII, the Americans with Disabilities Act, Genetic Information Nondiscrimination Act, and the Age Discrimination Employment Act. At a meeting on August 18, 2020, I discussed the notice of proposed rulemaking that proposed making these changes.

As discussed at that meeting, the commission sought to amend its regulations to commit to disclose certain information during the conciliation process. As the NPRM explained, these disclosures would help the commission meet its statutory obligations related to conciliation as discussed in the Supreme Court's Mach Mining case and help the commission successfully conciliate more cases by bringing greater transparency to the process.

The commission has now had the benefit of a public comment period in which have received the views from a variety of stakeholders. The comments received from these stakeholders, both those who favored the rule and those who were against have been very beneficial to the commission's deliberative process. After considering the comments, the commission is now ready to vote on a final rule to amend the commission's conciliation procedures.

The final rule that is currently before the commission is similar to the changes that were proposed in the NPRM, well, with some adjustments based on the comments that were received, which I’ll discuss in more detail now. In 1601.24, which covers Title VII, the ADA and GINA, as in the proposal, first, the commission is requiring itself if it is has not already done so, to provide the respondents with a written summary of the known facts and non-privileged information that are relied on in its reasonable cause finding.

One change that was made to the subject section is that two of the disclosures about potential class sizes in the proposal were in the commission's discretion. The final rule makes them mandatory after receiving comments on this point, but only to the extent that this info is known at the time. The second requirement is that the commission provided summary of legal basis for its reasonable cause finding.

The final rule clarifies that this disclosure should be in writing in response to comments, but removes the requirement that the commission explain material information that caused it to doubt that there was reasonable cause to believe that discrimination had occurred after comments expressed concerns about whether this requirement could be implemented.

The third requirement is that the commission must provide the basis for its conciliation demands. The final rule states that this explanation must be in writing for the initial proposal, but subsequent proposals do not have to be. The fourth requirement is identical to what was proposed in the commission, in that the commission must disclose if the case has been designated systemic, class or pattern of practice. However, the final rule clarifies that this disclosure should be in writing.

The final rule also retains the requirement that the respondent have at least 14 calendar days to respond to the commission's initial conciliation proposal. The final rule does adjust the provision in the proposal that stated everything provided to the respondent under the rule would also be disclosed to the charging party, by making it so that the charging party would not receive information about other aggrieved individuals after concerns about privacy were raised.

Corresponding changes were made to the ADEA’s conciliation regulation found at 1626.12, while taking into account that the ADEA has slightly different language regarding conciliation to Title VII. Overall, this final rule puts the commission in a better position to meet its statutory conciliation requirements. It allows for the conciliation to be a more productive process that will lead to more cases being resolved. More successful conciliations will benefit the victims of discrimination that come to us for help.

Without conciliation, unfortunately, many of these [00:33:20 inaudible] whatsoever. This rule will allow the commission to get more relief for the people that deserve it. Thank you and I look forward to your questions.

Dhillon: Thank you. We will now turn to our first round of comments and questions. We will begin with Vice Chair Sonderling.

Sonderling: I do not have any comments or questions regarding the conciliation. Now, as stated in my opening statement, I think this rule is very well thought. I think that the redraft that is up for the vote today, a lot of additional hard work was put into it with the comments and I believe this rule will really help get cases settled and help employees and employers in this process. With that, I do not have any questions and we can move on from my time.

Dhillon: Thank you. Commissioner Burrows, I offer the floor to you.

Burrows: Thank you, Madam Chair. Conciliation impacts the right of every employee to be free from discrimination, harassment, and retaliation at work. EEOC uses it 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 five-year tenure.

In theory, the goal of examining and updating our existing conciliation guidance has merit. As I noted at the outset, I'm pleased that we could work together to improve the document from the version issued for public comment. Some of the most objectionable aspects have been removed. I'm pleased that the document now clearly protects privileged materials from disclosure and conciliation and better offers protection for witnesses who have the moral courage to report discrimination to this agency.

It also makes very clear that the commission does not intend to give up the considerable discretion Congress granted us to determine the appropriate approach to conciliation depending on the facts of a specific charge, but the proposal we consider today still has too many downsides. Chief among them, the near certainty that it will lead to expensive and needless litigation.

I do believe that with sufficient time and bipartisan effort we could have come up with a proposal that achieves the rules stated and without embroiling this agency in needless litigation. I'd be willing to continue that effort in the next administration. This proposal as written will divert EEOC’s limited precious resources away from fighting discrimination because it creates a new avenue for costly, time consuming collateral appeals against the commission. That certainly doesn't advance the mission of this agency.

The proposal seeks to undo by regulation the EEOC’s 2015 victory in Mach Mining, when the Supreme Court unanimously affirmed that focusing on the commission's conciliation process instead of eliminating discrimination conflicts with Title VII and undermines the civil rights laws reinforced. It ignores the weight of the public comments, which largely oppose this rule, and it rests on the unsupported assumption that when conciliations are unsuccessful, it's solely because EEOC somehow failed in the process.

The NPRM specifically ask commenters to address the concern that the rule will result in additional challenges to the commission's conciliation efforts and whether such challenges will delay or adversely impact the litigation brought by the commission. All but one commenter who addressed this concern noted that the proposal will increase challenges, cause delay, and incentivize gamesmanship, diverting vital resources from fighting discrimination.

We should have addressed this impact directly, but instead, largely ignored. We should also ensure that our reasoning is evidence-based rather than based on assumptions. I move to postpone this question to an adjourn meeting within the next six months so the commission can complete and consider its ongoing conciliation pilot.

Dhillon: Is there a second to the motion?

Samuels: This is Commissioner Samuels. I second.

Dhillon: We will move to a vote on Commissioner Burrows’ motion, starting with Vice Chair Sonderling.

Burrows: Excuse me Madam Chair. I believe that the debate on this motion to postpone under Robert’s Rule is in order and I would like to explain the reasons for my motion.

Dhillon: Very well Commissioner Burrows. If you'd like to speak to your motion, go forward.

Burrows: Thank you very much Madam Chair. Last May, the Chair implemented a six-month conciliation pilot across all 53 of our offices nationwide. When the pilot was announced to the public in July, it was characterized as part of a broader effort to emphasize the importance of conciliation as a tool for remedying complaints of discrimination. The purpose of any pilot undertaken by the commission is to inform its decision making.

The commission lacks, or has not had the opportunity to review or consider the results of this pilot and we certainly haven't had the opportunity to incorporate any findings from the pilot into the proposed rulemaking we consider today. This proposal was announced just a few months after the conciliation pilot was rolled out across the country and well before that pilot was expected to complete. The commission's notice the proposed rulemaking did not discuss, or even mention the ongoing pilot.

At the commission’s public meeting on the draft in August, I expressed the importance of studying the results of the pilot before any final vote. Then Commissioner Lipnic agreed that the results of the pilot and any other agency data and conciliations should inform our final decision-making. During the public commenting period, numerous commenters urged the commission to complete that pilot and analyze the results before finalizing any changes to the process.

As one commenter noted, the EEOC’s rushed rulemaking deprived the public and the agency of the opportunity to fully consider the information that will be obtained through the pilot program and determine the most effective and appropriate changes to this conciliation process. The conciliation pilot was set to expire last November and in anticipation of that, I requested any reports or underlying data from that pilot in a formal briefing on the results.

I reiterated that the commission must review and discuss the results before finalizing any proposed changes to these procedures. I also expressed concern that the commission's failure to examine and incorporate lessons from that pilot would make any rulemaking on conciliation vulnerable to challenges, arbitrary and capricious. That request for briefing was denied. A few days later, the pilot was extended until further notice.

The accompanying memo explained that the pilot was extended because agency leadership had not had the opportunity to assess the effectiveness of the pilots or solicit feedback. The commission has devoted significant time and resources to this pilot. It has trained thousands of employees in the field on its procedures. The pilot has been applied to every conciliation we've conducted over the past seven months.

As a result, the agency's enforcement staff has a significant experience with this pilot and its impact on conciliation. We must consider it as part of our rulemaking. The pilot will provide us with data, information, and lessons about how we can best improve our conciliation practices. Voting on this rule without the benefit of that information is poor government practice.

Indeed, I would argue that failing to consider it would be the very definition of arbitrary and capricious rulemaking. The preamble to this pilot claim the pilot made only a single change to this process. The preamble further asserts that it is not related to this rulemaking, because it addresses a different aspect of conciliation. Despite my repeated requests, that pilot has never been provided to the full commission, rather it was unilaterally implemented and launched nationwide.

Nevertheless, from the limited information announced, the public had gleaned from discussion with agency personnel, it's clear the pilot is relevant to the guidelines we consider today. First, field leadership disputes, at least as far as I can tell, it's not clear that the pilot was only making one change to this process. Under the pilots, the commission made its predetermination interviews of respondents even more robust and similar to the rule we are considering today began providing more information to respondents in initial conciliation communication.

Indeed, EEOC’s press release announcing the pilot states that the pilot builds on a renewed commitment for full communication between the EEOC and the parties and adds the core requirements that conciliation offers be approved by the appropriate level of management before being shared with the respondents. It's notable, that both the pilot and this proposed rulemaking emphasize communication between EEOC and the party. At this point, we have no evidence that providing more information to respondents improves conciliation outcome.

Finally, the purpose of the pilot, according to the Chair is “to ensure internal accountability and emphasize resolving charges before resorting to litigation.” That's precisely the justification for this rule. Accordingly, there's no question that this pilot is highly relevant to what we're considering today and our failure to evaluate those results abdicates our responsibility to make reasoned evidence-based decisions that take into account all available information.

For these reasons, I again urge my colleagues to support this motion so that the commission can complete, evaluate, and consider the ongoing pilot before finalizing this rule on conciliation. Thank you, Madam Chair. I will reserve the rest of my time for rebuttal.

Dhillon: Thank you Commissioner Burrows. Vice Chair Sonderling, do you wish to speak to Commissioner Burrow's motion?

Sonderling: No.

Dhillon: Commissioner Samuels, do you wish to speak to Commissioner Burrow's motion?

Samuels: I do. Thank you, Chair Dhillon. I support this motion to postpone this rulemaking until the conciliation pilot is completed and we have a chance to evaluate the results. Pilot projects can be an important tool for testing new processes and procedures, but they're only useful when conducted with controls and metrics to allow the processes they are testing to be evaluated.

I've seen no evidence to such controls or metrics here. In fact, the Office of Field Programs has decided to extend the pilot to give adequate time for evaluation of its results. I believe the interest of good government are best served when policy making is evidence driven. The completion and the evaluation of the conciliation pilot would give us valuable evidence to inform our decision-making in this sphere.

Indeed, whether the topics of the conciliation pilot are precisely on all fours with the topics of the regulations we're considering, it’s irrelevant. Both efforts are closely intertwined and seek to improve communications with respondents in order to improve the commission success rates in conciliation.

The impact of a pilot, even one that is as the preamble, I think someone is leading the research, limited to the commission’s calculations of, and communications about damages, is deeply failing in evaluating whether the rule we consider today is likely to serve the commission's interest and mission. Do we know if more employers have agreed to participate in conciliation as a result of the pilot? Do we know if these conciliations have been successful at higher rates than previously?

In the absence of that information, which the commission knows will be available at the conclusion of the pilot, it's hard to conclude that adoption of this regulation today is anything other than arbitrary and capricious. For these reasons, I support this motion and I encourage my colleagues to do the same. Thank you, Chair Dhillon.

Dhillon: Thank you Commissioner Samuels. Commissioner Lucas, do you wish to speak to Commissioner Burrow’s motion?

Lucas: I do not. Thank you.

Dhillon: Thank you, Commissioner Lucas. I'll offer some brief remarks in response to Commissioner Burrows’ motion to postpone. Respectfully I oppose this motion. I will point out that the pilot program is discussed in the proposed final rule. As it lays out, in May of 2020, the EEOC launched a six-month pilot program. That pilot program made a single change to the conciliation process.

Specifically, it added a requirement that initial conciliation offers be approved by certain levels of management prior to being shared with the respondents. This pilot was designed to provide additional oversight by management to ensure that the conciliation process was in line with the facts of a particular charge. In addition, in connection with the conciliation pilot, the agency engaged in robust additional training across the agency concerning conciliation processes, including the requirement that has long been in place that the commission conduct predetermination interviews.

The pilot was subsequently extended by the decision of the director of Office Field Programs. When he communicated that decision, he explained that he was relatively new to the rule and that he wanted to have additional opportunity to develop feedback and to assess the pilot before he made a decision about whether to make the pilot permanent. He shared that decision and his rationale and an outline of it to all of the commissioners and of course, as we all know very well, he is always available to all of us to respond to any kind of questions or provide information that any of us seek.

With that, we will move to a vote on Commissioner Burrows’ motion to postpone, and we'll do it by roll call for clarity of the record since we're on the phone. Vice Chair Sonderling, how do you vote?

Sonderling: I vote no. I think this is addressed in the rule as stated.

Dhillon: Commissioner Burrows.

Burrows: I vote yes.

Dhillon: Commissioner Samuels.

Samuels: I vote yes.

Dhillon: Commissioner Lucas.

Lucas: I vote no.

Dhillon: I vote no. The motion fails.

Burrows: Thank you Madam Chair. I move to postpone the question to an adjourned meeting to take place in three months or date and time set by the Chair so the commission can review, consider, and discuss the results of the recently completed conciliation project.

Dhillon: Is there a second to Commissioner Burrows’ motion?

Samuels: This is Commissioner Samuels. I second the motion.

Dhillon: Commissioner Burrows, would you like to speak to your motion?

Burrows: Yes. In February of 2019, then acting Chair, Victoria Lipnic announced the EEOC conciliation project, an effort to collect and analyze data from various conciliation efforts conducted across this agency. The project continued under the current leadership and was included in the EEOC 2020 and 2021 budget specifications to Congress.

According to the Chair's 2020 financial reports, the conciliation project is, “Designed to address congressional and stakeholder interests and to provide the agency with valuable information about one of its most important statutory function the conciliation of charges of discrimination in which cause has been found.”

The agency's Office of Enterprise Data and Analytics or OEDA, began collecting conciliation data from EEOC’s district offices in November 2019, concluded its data collection efforts over the summer and delivered an interim report to the Chair in September.

There's no question that this data from the conciliation project is relevant to our rulemaking today and yet the notice of proposed rulemaking makes no mention, the initial NPRM not this one, made no mention of the ongoing data collection and analysis.

As I said at the August public meeting on this draft rule, the commission should have the benefit of this data before finalizing any changes to our conciliation projects. As with the pilot, which I discussed earlier, failing to examine and discuss this data before finalizing our rule would be the very definition of arbitrary and capricious rulemaking.

Numerous commenters echo this concern in their public comments, noting that the preamble of this proposed rule was based on assumptions conjecture unsupported [00:51:05 inaudible], not data. In mid-December, the Chair circulated a final report from the conciliation project to the commission.

At the Chair's request, that report analyzed how some aspects of charges in conciliation may be related to successful failure of that conciliation. That report caution that its results were limited to the specific factors the Chair asked it to analyze, and that, “There may be other factors in the data that are not explored,” in the report that may shed further light on conciliation success or failure.

It listed other factors that could impact conciliation outcomes, but were not analyzed. It also explicitly stated that OEDA did not directly analyze the factors related to respondents’ refusal to engage in conciliation. When Commissioner Samuels and I requested a briefing on that report to inform our decision-making today, the Chair scheduled the briefing for next Monday, January 11th, which is obviously after today's vote.

More importantly, the commission as a whole has no opportunity to evaluate and discuss together, the results of that analysis. In announcing priorities for 2020, the Chair expressed a commitment to use modern data analytics to facilitate data driven decision-making. I completely agree. The commission should honor that commitment, especially on something as important and impactful as this proposal says.

We should never regulate with abstract when we have data available. The conciliation project has been a major undertaking by OEDA, involving nationwide data collection and analysis. It should be fully examined before we take a vote. To do otherwise is not only a waste of our limited resources, it's bad government practice, and it threatens the integrity of this rulemaking.

I therefore urge my colleagues to support this amendment and help us together to make a decision that is well reasoned. In a footnote, the preamble asserts that the analysis from the conciliation project is, “consistent with changes in the proposed rule.” It concluded that there are two primary reasons. The report rather concluded there are two primary reasons conciliation fails.

First, respondents decline to engage in conciliation and second, parties can't agree on the money, but nothing in the report suggests that conciliations fail or that respondents choose not to participate in conciliation solely because the EEOC provides insufficient information about the discrimination finding for the [00:53:41 inaudible] thought, yet that's the fundamental root of this proposal.

OEDA didn't even analyze factors related to respondents’ refusal to engage in conciliation. Indeed, the draft report suggests that this question merits further analysis. In other words, the data doesn't support this assumption that's at the crux of our rulemaking, that if the EEOC provided more information, we would somehow have more findings in conciliation or more resolutions conciliation.

This lack of data to support our assumptions at the heart of this rule will not come as a surprise to our enforcement and legal staff who work tirelessly to resolve charges through voluntary compliance whenever possible. Respondents may refuse to participate in conciliation because they simply disagree with the findings of discrimination or they may be unwilling to change their practices.

Respondents may also simply choose to roll the dice, knowing that the EEOC only litigates a few of its cases where discrimination is found. As noted in the comments submitted by former officials and employees, there's no evidence that providing additional information to respondents will lead to increased success. In fact, our considerable experience with conciliation suggests the opposite.

The employers are just going to use the additional information to prepare for litigation, not to voluntarily resolve charges. We have not had opportunity to evaluate and discuss the results of the data analysis, which does however, give us the information that this assumption that we ask for [00:55:19 inaudible] maximum damages is actually false.

In that regard, this is exactly on point, yet we haven't had the time to look at it and certainly that fact is not reflected in this proposal. I ask that this motion be adopted in order to allow us to have reasoned evidence-based decision making here.

Dhillon: Thank you Commissioner Burrows. Vice Chair Sonderling, would you like to speak to Commissioner Burrows’ motion?

Sonderling: No, and again, I think the final rule speaks for itself on a lot of these issues.

Dhillon: Thank you. Commissioner Samuels, would you like to speak to Commissioner Burrows’ motion?

Samuels: Thank you, Chair Dhillon. I'll make some brief remarks. I support this motion for essentially the same reasons that I supported the prior motion, to postpone a vote pending completion and evaluation of the pilot program. To the extent, in a way that drew any conclusions from the data it collected, those conclusions don't support the premise that any of the changes proposed by this rule would make a difference to the outcomes of our conciliation.

We owe it to the public to make data driven decisions that are founded on the evidence that we have available and that we can master to make the determination about whether a proposed policy will serve its stated goals. I do not believe that we have that evidence of this [00:56:54 inaudible] and so I support the motion to further study the impact of the conciliation project and ensure that it supports the solutions that we are adopting today. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you wish to speak to Commissioner Burrows’ motion?

Lucas: I do not. Thank you.

Dhillon: Thank you, Commissioner Lucas. I will offer some brief remarks concerning the work that OEDA has done around conciliation. As noted, former acting Chair Lipnic initially tasked OEDA with looking at the commission's conciliation efforts and developing a framework for their analysis. They prepared an initial report of preliminary analytical conclusions in April this year that was provided to the commissioners.

They subsequently finalized their work in the form of a report in mid-December that was also provided to all of the commissioners. Commissioner staff have subsequently sought and received briefings from OEDA personnel concerning the work and their report and now I understand that commissioners themselves have also asked for briefings in addition to the briefings that have taken place for their staff, and again, OEDA is making themselves available to provide those requested briefings.

I will also note that the report prepared by OEDA is discussed in the final rule. With that, we'll move to a vote on Commissioner Burrows’ motion, and for purposes of clarity of our telephonic record, we'll do it in roll call fashion. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: Yes.

Dhillon: Commissioner Samuels, how do you vote?

Samuels: I vote yes.

Dhillon: Commissioner Lucas, how do you vote?

Lucas: I vote no.

Dhillon: I vote no. The motion fails. We will now go back to our first round of comments and questions and I will offer the floor to Commissioner Samuels.

Samuels: Thank you Chair Dhillon. I'm not sure if Commissioner Burrows is finished with her remarks for this first round of question.

Burrows: I was not. By my count, there’s still some time left, and I have a couple of motions remaining.

Dhillon: Very well Commissioner Burrows, please proceed.

Burrows: Thank you. I moved to postpone the question to an adjourned meeting so that we can, to a time and date set by the Chair, so we can perform a more rigorous cost benefit analysis.

Dhillon: Is there a second to Commissioner Burrows’ motion?

Samuels: This is Commissioner Samuels. I second the motion.

Dhillon: Thank you, Commissioner Samuels. Commissioner Burrows, do you like to speak to your motion?

Burrows: Thank you Madam Chair. The Office of Management and Budget determined the proposed rule in conciliation is significant under Executive Order 12866 because it raises noble legal or policy issues arising out of legal mandate. Executive Order 12866 requires agencies to assess the costs and benefits of a proposed rule and adopt a regulation only upon a reasoned determination and the benefits of the intended regulation justify its cost.

The Executive Order also states that an agency's decision must be based on the best reasonably obtained scientific, technological, economic, and other information concerning the need for and consequences of the intended regulation. Basing regulations on reasoned determinations in the best available data is not just an EO requirement, it's prudent government practice. Unfortunately, this rule’s cost benefit analysis lacks a reasoned determination based on the best available data. Instead, it's based on a series of unsupported, one sided assumptions and fuzzy numbers.

For example, the analysis asserts that the additional costs of proposed rule impose on the EEOC could be offset by possible cost savings derived from the changes. The preamble asserts that if more cases are resolved in conciliation, the commission would receive fewer FOIA requests resulting in cost savings for the government. It further asserts that if more cases are resolved in conciliation, it will benefit employers, employees, and the economy as a whole.

But there's nothing more than conjecture to support this and it doesn't amount to the reasoned determination required under the Executive Order. We have no data or even anecdotal evidence to suggest that providing respondents with more information in conciliation will increase participation in conciliation or our success rates if the entire rule and the cost benefit analysis is based on that fundamental and unsupported assumption.

Moreover, as many commenters pointed out, the cost benefit analysis focuses solely on cost to employers. It ignores the considerable costs that will be imposed on this agency, as well as the monumental impact that unremedied discrimination has on workers in the general public. As one commenter noted, adding requirements to the conciliation process encourages employers to assert a failure to conciliate defense and gives employers a roadmap for increasing delay, a tactic that is costly to both the EEOC and workers that it seeks to protect.

The proposed rule opens up a new avenue for costly and time-consuming litigation against this commission by regulating burdensome new steps, or at least seeming to, the EEOC must take in every conciliation. The proposed rule invites litigation over whether we complied with these unnecessary rules that will inevitably divert limited resources from remedying discrimination to defending our administrative process, yet the cost benefit analysis fails to consider this significant expense of ancillary mitigation to the EEOC and accordingly the tax paying public.

The proposed rule is also silent on potential costs to employees, including the possibility of lower monitorial covers and conciliation. OEDA found that in every case where the respondent provided a final offer in conciliation, the amount recovered in litigation exceeded the respondent's final offer by a range of 1.7 times to 228 times more, an average of 19 times more. Now all of this is also based on numbers from unreliable sources.

For example, the proposed rules estimate of cost savings to employers is based on the approximate cost of defending a lawsuit through summary judgment or trial, according to one lawyer who has the preamble described as an experienced defense attorney. That estimate was pulled from a 2013 blog post on workforce.com. The lawyer begins the post by recounting his strong belief that American workers don't need additional protection in the workplace and reminding readers that he wrote an entire book on the issue of employer rights, but he's cites no data or other source for these approximations.

The preamble also cites the 2019 lawyers.com post entitled Wrongful Termination Claims. How much does a lawyer cost? The post published by a law firm marketing company is based on an informal survey of their readership. The preamble uses these resources in a parade of unsupportive assumption to conclude that if the commission successfully conciliate just a hundred more cases each year, that would save the economy over four million in litigation costs. This is hardly reasoned decision-making.

We as public servants and stewards of this commission owe the public better. I therefore urge my colleagues to support the motion to postpone so that we can complete a balanced data driven and objective cost benefit analysis before finalizing the proposed rule.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you wish to speak to Commissioner Burrow's motion?

Sonderling: With regard to any kind of economic analysis, I know it does go through a rigorous interagency process here at the EEOC, so I have confidence in the review done by various divisions within the EEOC, including OLC and OEDA.

Dhillon: Commissioner Samuels, do you wish to speak to Commissioner Burrow's motion?

Samuels: Thank you, Chair Dhillon. I support this motion and I agree with Commissioner Burrows that the cost benefit analysis is based on an entirely speculative assessment of the possible, but by no means likely benefited the rule. Indeed, even if the rule were to result in agreement by more employers to participate in conciliations, that's not inherently beneficial, unless that participation leads to more successful resolutions. We have no evidence of that other than our coop, that it will be the case.

Moreover, the cost analysis fails to evaluate any costs that may be imposed on commission or on charging parties in the public. Commission staff will not only spend more time preparing for conciliation, which may delay time on the resolution of charges as a whole, but will also likely be forced to defend the ancillary litigation that the rule seems likely to trigger.

Indeed, commission staff may well have to litigate challenges to the rule itself at the violation of the Administrative Procedure Act. The rule also fails to grapple with the cost of charging parties in a public, including by providing unfair advantages to employers of litigation. As a result, I support engaging in a true and robust cost benefit analysis prior to a commission vote on this rule. Thank you.

Dhillon: Thank you Commissioner Samuels. Commissioner Lucas, do you have any comments to offer concerning Commissioner Burrows’ motion?

Lucas: I echo the comments of Vice Chair Sonderling and for those reasons, I oppose the motion. Thank you.

Dhillon: Thank you, Commissioner Lucas. I don't have anything to offer concerning Commissioner Burrows’ motion, so we'll move to a roll call vote. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: Yes.

Dhillon: Commissioner Samuels, how do you vote?

Samuels: Yes.

Dhillon: Commissioner Lucas, how do you vote?

Lucas: No.

Dhillon: I vote no, so the motion fails. Commissioner Burrows.

Burrows: I offer amendment one.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to speak to your proposed amendment?

Burrows: Thank you. The preamble to the proposed rule emphasizes that Congress preferred conciliation over litigation and the need to enforce Title VII. The preamble uses the term preferred or favor to describe conciliation about nine times. I agree that voluntary compliance is preferable to the risk delays and burden of litigation to enforce the law. This amendment, however, would add the Supreme Court's unanimous holding that conciliation is not an end in itself, but rather a tool to remedy discrimination.

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 discrimination. When Congress amended Title VII in 1972 to give this commission authority to enforce the law, Congress recognized that voluntary conciliation rather alone was insufficient to remedy discrimination.

The Senate report for the 1972 amendments note that, “Regrettably, the practices and policies of discrimination and employment are so deeply ingrained that the voluntary conciliation approach has not succeeded in adequately combating the existence of such practices.” That unfortunately is still very true in 2021. While voluntary resolution is the goal, it is simply not the case that every employer, even most employers who have been found in our investigation to have discriminated are going to settle voluntarily, particularly if they know that we rarely get to litigation given our limited resources.

We must ensure that the rule does not elevate process over substance and incentivize settlement at all costs. Such an approach would undermine the commission 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 rule.

The commission also recognizes, however, that Title VII treats the conciliation process, not as an end in itself, but only as a tool to redress workplace discrimination. Mach Mining 575 US at 491, as the Supreme Court unanimously confirmed in Mach Mining Title VII, ultimately cares about substantive results. Its conciliation provision explicitly serves substantive mission, “to eliminate unlawful discrimination from the workplace,” 42 USC Section 2000e-5B.

Accordingly, while this rule provides additional guidance to EEOC personnel in conducting conciliation, the commission emphasizes that these procedures should not be interpreted to elevate form over substance in a manner that will undermine Congress's overarching legislative goal of eliminating unlawful workplace discrimination. I urge my colleagues to support amendment one, to add the Supreme Court’s unanimous holding. With that, I yield back.

Dhillon: Thank you Commissioner Burrows. Vice Chair Sonderling, do you wish to speak to Commissioner Burrows’ motion to amend?

Sonderling: I do not.

Dhillon: Thank you. Commissioner Samuels, do you wish to speak to Commissioner Burrows’ amendment number one?

Samuels: Thank you, Chair Dhillon. I support this amendment and would just say that the language here crystallizes the critical point recognized in Mach Mining that conciliation is not an end to itself and makes clear that the lodestar of all of our work is to promote equal opportunity in the workplace. For those reasons I encourage my colleagues to vote in support of this amendment.

Dhillon: Thank you. Commissioner Lucas, do you wish to speak concerning Commissioner Burrows’ amendment number one?

Lucas: I do. In a general manner, I greatly appreciate the hours spent working, engaging with my fellow commissioners for the revised preamble and rule before us. Indeed, I proposed significant revisions too and supported others by all of my colleagues. While I appreciate the desire for each commissioner to continue to revise the product to better align it with each of our views and preferences, I believe that the revised and improved rule before us embodies the greatest degree of consensus that can be achieved, even if it ultimately cannot be supported by all of my fellow commissioners.

As a result, after carefully reviewing, considering, and discussing this amendment and many others of my colleagues, I cannot support it. I think the current preamble already addresses the points made in the proposed additional texts and Commissioner Burrows’ amendment number one. I also think that it's important to continue to emphasize that Congress uses the term conciliation as the preferred vehicle for ending unlawful discrimination because it terminates the unlawful practice at the earliest possible point. I'm concerned that this edit could potentially water down that more primary point so I would vote against this amendment. Thank you.

Dhillon: Thank you, Commissioner Lucas. I don't have anything to add concerning Commissioner Burrows’ amendment number one so we will move to a roll call vote. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: I vote yes.

Dhillon: Commissioner Samuels, how do you vote?

Samuels: Yes.

Dhillon: Commissioner Lucas, how do you vote?

Lucas: I vote no.

Dhillon: I vote no so amendment number one fails. Commissioner Burrows.

Burrows: I offer amendment two.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to speak to amendment number two?

Burrows: Yes. Thank you, Madam Chair. I offer this amendment to more accurately reflect the Supreme Court's unanimous ruling in Mach Mining. The preamble to the proposed rule makes clear that the rule is intended to enhance conciliation and strengthen the commission's ability to stop and remedy unlawful discrimination.

According to the preamble, the rule aims to accomplish this by ensuring that employers are provided with certain basic information, which in turn will achieve conciliation in a greater number of cases. This basic information that preamble acknowledges is generally provided to employers prior to a cause finding and in the letter of determination, all of which occur prior to conciliation.

The preamble is clear that the rule is not meant to replace those disclosures or duplicate them and I'm quoting here, nor is the rule intended to limit the abundant discretion the law gives to the EEOC to decide what disclosures are appropriate in a given case. As the Supreme Court held in Mach Mining and as the preamble acknowledges, this commission is not required, “to devote a set amount of time or resources,” or take, “any specific steps or measures” to satisfy the statutory conciliation obligation.

Title VII provides EEOC with expansive discretion over the conciliation profits. I'm again, quoting from the unanimous Supreme Court opinion. The Supreme Court explained that flexibility is the hallmark of the statute and stress that every aspect of Title VII’s conciliations provision [01:16:42 inaudible]. The court specifically rejected Mach Mining’s request to impose a rigid checklist on the conciliation process. Rather, the Supreme Court affirmed that the EEOC can use whatever informal means of settlement or appropriate in each individual case.

The proposed rule expressly states that the commission intends to maintain this critical flexibility while also providing a guidepost for the commission to follow in meeting its conciliation obligations. The amendment will clarify the stated intent of the rule that adherence to these guideposts will put beyond reasonable dispute in most, if not all, cases of the commission in compliance with Mach Mining.

The proposed guideposts go beyond what the Supreme Court held was necessary to satisfy the statute, namely, to tell the employer about the claim, essentially what practice was harmed, which person or class, and provide the employer with an opportunity to discuss the matter in an effort to achieve voluntary compliance. The amendment will reinforce that the rule does not provide an additional avenue for litigation by the parties and does not take away any of this fundamentalist question in flexibility.

Accordingly, I urge my colleagues to support amendment two to make clear that the rule goes beyond the Supreme Court decision in Mach Mining and so we’ll make it abundantly clear that we have satisfied those requirements as we adhere to these guidelines. With that, I will reserve the balance of my time for rebuttal.

Dhillon: Vice Chair Sonderling, do you wish to speak to Commissioner Burrows’ amendment number two?

Sonderling: No, but on the topic of Mach Mining as a whole, I think it is very adequately addressed in the final rule in great detail and almost every part of the case is addressed in this rule.

Dhillon: Commissioner Samuels, do you wish to speak to Commissioner Burrows’ amendment number two?

Samuels: Thank you, Chair Dhillon. I support this amendment and I agree that the current guidelines of this rule will result in the commission exceeding its obligations in conciliation as described in Mach Mining. This regulation provides guidelines for commission staff engaging in conciliation, but does not set standards that are necessary to meet the statutory obligations described in Mach Mining.

Nothing in the regulation authorizes a private right of action to challenge a purported commission failure to adhere to the standards of the regulation and this amendment to the preamble will help to make that point clear. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you wish to speak to Commissioner Burrows’ amendment number two?

Lucas: I continue to think that Mach Mining is perfectly accurately described already in the preamble and the remainder of the rule, so I think this amendment is unnecessary. Thank you.

Dhillon: Thank you, Commissioner Lucas. I do not have anything to add so we'll go to a roll call vote on Commissioner Burrows’ amendment number two. Vice Chair Sonderling, how do you vote?

Sonderling: I vote no, for the reasons stated before.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: I vote yes.

Dhillon: Commissioner Samuels, how do you vote?

Samuels: Yes.

Dhillon: Commissioner Lucas, how do you vote?

Lucas: I vote no.

Dhillon: I vote no. Amendment number two fails. Commissioner Burrows.

Burrows: Thank you Madam Chair. How much time is remaining?

Dhillon: You have actually used up your time.

Burrows: All right. [01:20:43 crosstalk].

Dhillon: We will have another round. Commissioner Samuels, I’ll turn the floor over to you for first round of your comments or questions.

Samuels: Thanks very much Chair Dhillon. When the commission finds cause to believe that a violation of our statutes has occurred, Title VII requires that we engage in informal methods of conference conciliation and persuasion in an effort to remedy the discrimination. Conciliation is a valuable tool in eliminating discrimination, resulting in the resolution of about 40% of the charges in which the commission has found cause to believe that our statutes have been violated.

But as we just discussed, conciliation is not a goal into itself. EEOC’s actions in conciliation must always be judged, not by whether conciliation can be achieved at any cost, but by whether conciliation advances the ultimate goal of our central civil rights [01:21:48 inaudible], the elimination of workplace discrimination. Indeed, litigating remains an essential tool for obtaining relief for victims of discrimination when informal methods fail and also plays an important role in developing the law and educating courts, employers and the public.

In Mach Mining, the Supreme Court recognized that Congress intended for the commission to exercise wide latitude, flexibility, and discretion when using informal means to achieve voluntary compliance. The preamble to this draft final rule acknowledges the importance of preserving this discretion more effectively and did the preamble to the NPRM. Indeed, I truly appreciate the tremendous work that has gone into this draft final rule and the Herculean efforts of career staff who worked through the year-end holidays to finalize it.

I want to recognize in particular, the staff at the Office of Legal Counsel, the Office of Field Programs, and the Office of General Counsel for their tireless work on this matter. I also appreciate Commissioner Lucas and her staff thoughtful engagement through the development of the rule. The rule is better through your input, Andrea, so I thank you. I look forward to continuing to learn from one another in a bipartisan effort to do the best work that we can for the EEOC many stakeholders.

Despite these efforts, I continue to think, as I made clear in response to the prior motions, that this rule is at best premature and unjustified at this point in time in addition ambiguous one which remains in it. Even if unintended, this lack of clarity could lead to mischief, including ancillary litigation challenging the commission’s compliance with this new conciliation rule. At bottom, nothing in this rule can or should be read to limit the commission's discretion in the conduct of conciliation.

To the extent the rule could be read to impose formalistic requirements, it is inconsistent with, and indeed likely violates the clear language and intention of Title VII as interpreted by the Supreme Court in Mach Mining. For that reason, I'd like to offer Samuels’ amendment 15, which was circulated to the commission yesterday to add language to the rule confirming the commission's intent to avoid ancillary litigation.

Dhillon: Is there a second to Samuels’ amendment number 15?

Burrows: I second.

Dhillon: Commissioner Samuels, do you wish to speak to your amendment?

Samuels: I do. Thank you so much. Many commenters express concerns that the rule will encourage collateral litigation regarding whether we've complied with the regulation in any given conciliation. This is the very issue the Supreme Court put to rest in Mach Mining, to the extent that the rule revised the distracting litigation at the pre–Mach Mining era, it will delay justice and divert precious resources from our efforts to provide relief to those subject to discrimination.

Litigation challenging the adequacy of conciliation may also run afoul of Title VII’s prohibition against disclosing anything said or done during conciliation to the public or in a subsequent proceeding. The Supreme Court explicitly recognized this danger in the Mach Mining decision. I think it's clear that the rule is not intended to create new opportunities for collateral litigation. In fact, quite the opposite.

The preamble states, the commission hopes that this final rule will reduce collateral attacks on the conciliation process, but because nothing in the language of the rule itself says anything to this effect, the commission’s clear intent will not be reflected in the code of federal regulations. While the preamble, if we vote to approve the rule, will of course be published in the Federal Register as simply not as accessible to those who will read the regulation in the future.

As a result, my amendment is simply we’re going to change it to inform the commission’s intent in the text of the rule itself, that nothing in the regulation is intended to give rise to new causes of action with regard to the commission’s adherence to the regulation. This language would not, of course, preclude challenges that we failed to comply with the statutory standards of Mach Mining. Much as I hope that we'll be able to quickly dispatch any such lawsuits, it would simply address challenges related to the standards of the regulation.

My amendment would add subsection G 21601.24 and subsection E 21626.12 with language that is identical to that, that was already approved by a bipartisan vote of the commission on our regulations, implementing Executive Order 13981, and prescribing procedures for issuing sub-regulatory guidance the languages that follow. This part is intended to improve the internal management at the commission.

As such, it is for the use of EEOC personnel only, and it's 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. I urge my fellow commissioners to support this amendment. Thank you, Chair Dhillon.

Dhillon: Thank you Commissioner Samuels. Vice Chair Sonderling, do you wish to speak to Commissioner Samuels’ proposed amendments?

Sonderling: No.

Dhillon: Commissioner Burrows, do you wish to speak to Commissioner Samuels’ proposed amendment?

Burrows: Yes. Thank you very much. The NPRM noted that the commission was specifically seeking input through the notice and comment process and the question of whether these proposed amendments will result in additional challenges to the commission's conciliation efforts and whether such challenges would delay or adversely impact litigation brought by this commission.

Notably, just one of the 15 management side law firm and organizations that supported the proposed rule address this issue. That commenter stated without explanation, that it did not believe the proposed amendments will result in additional challenges to the commission’s conciliation efforts. By contrast, several of the comments in opposition of this rule warned that the rule would inevitably lead to a barrage of wasteful collateral disputes and unnecessary delay.

Indeed, one commenter noted that the proposed rule will permit the employer to delay the conciliation process by continuously demanding additional information and the regulation gives the defense bar a vehicle to delay and complicate the EEOC litigation process by providing a legal basis to challenge a prerequisite to EEOC’s [01:29:52 inaudible]. Another commenter added that the rule unnecessarily creates a new statutory defense for employers inconsistent with the plain text of Title VII and entirely at odds with the agency’s law enforcement responsibilities.

I agree, the rule creates burdensome new steps that EEOC will be taking in each conciliation and by doing so it invites the precise type of ancillary litigation that the Supreme Court and Mach Mining unanimously extinguished before Mach Mining employers routinely challenged our conciliation efforts, as a matter of course. The more egregious the discrimination, the more incentive employers had to challenge our conciliation efforts. The result was that EEOC was forced to conduct many trials on the administrative process before ever reaching the merits of the underlying discrimination claim.

The proposed guidelines imposed by regulation where the Supreme Court unanimously said we need not do in Mach Mining. Collateral litigation about our pre-suit efforts distracts some Title VII substantive mission and diverts the commission’s limited resources from enforcing the law to defending its process. Focusing on our conciliation process instead of eliminating discrimination conflicts with Title VII and undermine the laws we enforce.

I wholeheartedly agree with Commissioner Samuels that amendment 15 is important to ensure the commission can meet the purpose of the rule expressed in the preamble, that the rule is not to create or encourage potential new avenues for dilatory litigation or conciliation, but rather intends to reduce the collateral tax and the conciliation process during litigation. I will vote in favor of amendment five and I urge my colleagues to do the same.

Dhillon: Thank you Commissioner Burrows. Commissioner Lucas, do you wish to speak to Commissioner Samuels’ proposed amendment 15?

Lucas: Yes, I do. To begin, I just want to thank Commissioner Samuels for her kind remarks regarding my and my staff's efforts in conciliation and I just want to reciprocate those. I greatly appreciated working with you and your staff, and like you, I look forward to continued bipartisan collaboration. I think the commission is stronger for that, even if we ultimately cannot reach final results that everyone agrees on. I think it's so important to try to reach any consensus and to try to make work product assessed as a possibly can be even if one or more of us ultimately cannot vote in support of that final product.

Specifically, with respect to this amendment, I do very much appreciate what Commissioner Samuels is seeking to do here. I thought carefully and hard about this particular amendment and ultimately concluded that I cannot support it. I am concerned that it would apply to the whole regulation, not just our proposed additions and therefore could end up being inconsistent with the Supreme Court's opinion in Mach Mining, where the court made it clear that the conciliation efforts were subject to limited judicial review.

Even if they are limited, some judicial review did still remain. I worry that this would muddy the waters there, perhaps unintentionally, but I think that the cost of this addition would exceed any intended benefits. Ultimately, I concluded that I can't support it even though I do very much appreciate the spirit of what it's meant to accomplish. Thank you.

Dhillon: Thank you, Commissioner Lucas. I'll speak briefly to Commissioner Samuels’ proposed amendment number 15. I too appreciate what Commissioner Samuels is trying to accomplish here and obviously the purpose of the proposed final rule is not to create an avenue for ancillary litigation around the commission's conciliation efforts. However, I am concerned about the amendments for the reasons that Commissioner Lucas articulated. It would apply to the entire regulation concerning conciliation, but the Supreme Court and Mach Mining has made it clear that the commission's conciliation efforts are subject to judicial review albeit limited judicial review.

Also, with respect to the comment that was made earlier about the fact that a similar provision was put into a regulation that the commission adopted last year, there the commission was establishing new regulatory requirements for guidance. I don't think that that particular regulation is analogous to the situation here. With that, we will move to a roll call vote on Commissioner Samuels’ proposed amendment number 15. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: Yes.

Dhillon: Commissioner Samuels, how do you vote?

Samuels: I vote yes. but I'd just like to thank both you Chair Dhillon and Commissioner Lucas for your efforts to reach across the aisle on this one.

Dhillon: Commissioner Lucas, how do you vote?

Lucas: I vote no. Thank you.

Dhillon: I vote no. The amendment fails. Commissioner Samuels.

Samuels: Just for purposes of [01:35:37 inaudible], I will note Chair Dhillon, I have three additional amendments that I would like to offer. I don't think that any of them will take considerable time. May I proceed with my amendment 16?

Dhillon: Yes.

Samuels: Thank you. I’d like to offer amendment 16 to clarify the rules applicability.

Dhillon: Is there a second?

Burrows: I second.

Dhillon: Commissioner Samuels, would you like to speak to your amendment?

Samuels: I would. Thank you. This amendment is really intended just to clarify the language on applicability of the rule and to avoid the ambiguity that I fear could arise from the current wording of the header. Currently, the header states that the rule is applicable to charges for which a “letter of determination invitation to conciliate,” is issued on or after the effective date.

This language doesn't reflect the variability of commission processes. I worry that it would cause unnecessary confusion in identifying the charges to which the new regulation would apply. That's because there is not always a single document that both informs an employer of the commission’s cause findings and invites the employer to participate in conciliation.

In practice, sometimes the invitation to conciliate follows the letter of determination. For example, where the commission must develop evidence regarding damages after the close of the investigation on the merits of a claim. In any event, the use of the term letter of determination invitation to conciliate refers to a document that may simply not exist in the commission's lexicon.

To avoid confusion, I would offer this amendment to make the rule applicable to charges for which the invitation to conciliate is issued on or after the effective date of the rule. I hope the commissioners can support this amendment.

Dhillon: Thank you Commissioner Samuels. Vice Chair Sonderling, do you wish to speak to this amendment?

Sonderling: No, I have no comment.

Dhillon: Commissioner Burrows, do you wish to speak to this amendment?

Burrows: Yes, just briefly. I do support amendment 16 so that we can clarify the intent that this rule applies to future conciliation and not otherwise with respect to the effective date as written. The letter refers to a letter of determination to engage in conciliation as Commissioner Samuels made clear, and that terminology is incorrect, and I think likely to confuse respondents and even our enforcement staff in the field. It was confusing to me as well when I first saw it.

Where the commission finds reasonable cause that discrimination has occurred, we issue a letter of discrimination setting forth the finding of discrimination and its reason and of course, as we all know, invite the respondent to engage in conciliation and proposed remedies to resolve that charge. While the letter of discrimination in the conciliation invitation are often issued at the very same time, that's not always the case to the extent that this language just otherwise I think it can just create some confusion that seems unnecessary.

I believe that should be something we can come to an agreement on. I certainly support this amendment so that we can clarify the actual intent here. I hope that we would be able to adopt this amendment.

Dhillon: Thank you Commissioner Burrows. Commissioner Lucas, do you wish to speak to this amendment?

Lucas: I do not. Thank you.

Dhillon: Thank you Commissioner Lucas. I'll speak briefly to it. When this amendment was initially proposed, I believe before Christmas, part of the proposed suggestions that were made by other commissioners’ offices, I had consulted with leadership in the Office of Field Programs and asked for their view on what the appropriate language should be here.

They advised that the language that is in the draft, they felt was the appropriate language and so I'm guided by their recommendations on this topic and I, as a result while I appreciate the spirit in which this is offered, and I agree we do want to be as clear as we possibly can be, I'm going to rely on the counsel that I received from leadership in the Office of Field Programs. We'll move to a roll call vote. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: I vote yes. Although I will say that this debate, I think hopefully has clarified it for anybody who ends up looking at the transcripts rather than just the rule, so that's helpful. I vote yes.

Dhillon: Commissioner Samuels.

Samuels: I vote yes.

Dhillon: Commissioner Lucas.

Lucas: I vote no.

Dhillon: I vote no. Amendment number 16 fails. Commissioner Samuels.

Samuels: Thank you so much, Chair Dhillon. I'd like to offer amendment 17 to extend the effective date of the rule to allow time for the commission to prepare procedures and train staff to implement the rule.

Burrows: I second.

Dhillon: You're proposing amendment number 17, just so the record is clear Commissioner Samuels?

Samuels: Yes, that's correct. Thank you.

Dhillon: Thank you. Is there a second?

Burrows: Yes, I would second.

Dhillon: Thank you. Commissioner Samuels, would you like to speak further in support of your amendment?

Samuels: Yes. Thank you. This amendment would further amend the date section in the same section we've just been discussing, to provide that the rule will become effective 60 rather than 30 days from the date of publication. This is really just intended to be a good government amendment and provide commission staff sufficient time to prepare necessary documentation and undertake necessary training to ensure that we do in fact adhere to the standards set out in this rule if we decide to adopt it today.

30 days is simply not a realistic amount of time for the commission to do the work necessary, to ensure that this rule is implemented appropriately. Among other things EEOC’s headquarters and field staff will have to develop procedures, checklists, forms, and other materials to ensure that investigators in each case develop each of the documents that the rule anticipates will be shared with respondents. They'll have to provide guidance to ensure that investigators can avoid any disclosure of confidential or privileged information. They'll have to establish processes for individuals to request the anonymity if they choose. They'll have to identify the role of legal staff in preparing or reviewing written documents to be provided to respondents.

In addition, [01:43:30 inaudible] the legal staff will have to be trained on these procedures in 52 field offices, all of the country, during the global pandemic on top of an already considerable workload and that the preamble to the regulation itself recognizes the need for time. For these reasons, and to avoid unwanted claims that the commission has failed to adhere to the regulation’s guidelines during the startup period, I urge my fellow commissioners to extend the effective date of the rule to 60 days from the date of publication. Thank you.

Dhillon: Thank you, Commissioner Samuels. Vice Chair Sonderling, do you wish to speak to the proposed amendment?

Sonderling: I don’t have anything to add.

Dhillon: Commissioner Burrows?

Burrows: Thank you, Madam Chair. Just briefly. I do support this amendment if the commission votes to approve the proposed rule, 30 days simply won't be sufficient to prepare the necessary internal procedures and train our staff nationwide to implement it. These guidelines cost benefit analysis acknowledge that it will require nationwide training of our own workforce. We will certainly need to train our enforcement staff on how to comply with the rule while protecting the agency's privileges, which are explicitly preserved in it.

We will also need to devise guidance on how enforcement staff can interpret terms added to the rule, such as how to determine whether a case is systemic or involve a pattern or practice for purposes of the rule. We will need to prepare our lawyers for significantly greater involvement in conciliation, and also to train on how to balance the guidelines’ disclosures with preservation of the agency's privileges and we will need to update our digital forms and templates and train the workforce on all of those updates. 30 days to implement an overhaul of the conciliation process would be aggressive under normal  circumstances. It's downright unreasonable, given the circumstances facing our nation and our workforce in this time of pandemic.

As we're all well aware that our staff has been, like every other American, affected by the ongoing Coronavirus epidemic or pandemic rather and it has affected our work. I would hate to create an additional workload unnecessarily here. We're also in the middle of the presidential transition, which is difficult for staff and as yesterday's events in our Capitol made clear, this transition promises to potentially be more volatile and uncertain than usual. Giving an additional 30 days to implement this overhaul of the conciliation process seams in the very least… I support the motion.

Dhillon: Thank you Commissioner Burrows. Commissioner Lucas, do you wish to speak concerning Commissioner Samuels’ amendment number 17?

Lucas: I do not. Thank you.

Dhillon: Thank you. I do not have anything to offer, so we will move to a roll call vote on Commissioner Samuels amendment number 17. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: I vote yes.

Dhillon: Commissioner Samuels, how do you vote?

Samuels: Yes.

Dhillon: Commissioner Lucas, how do you vote?

Lucas: I vote no.

Dhillon: I vote no. The proposed amendment number 17 fails. Commissioner Samuels.

Samuels: I have one more amendment to offer this round. Do I still have time?

Dhillon: Yes. You would like to offer amendment number 18?

Samuels: That's correct.

Dhillon: Is there a second?

Burrows: I second.

Dhillon: Thank you. Commissioner Samuels, do you wish to speak in support of your proposed amendment?

Samuels: Yes. Thank you. I’ll move that again, the date section of the header, the language we've been discussing for the last few minutes, be amended by the addition of the following sentence. This rule shall remain in effect for one year from the effective date, unless the commission votes to reauthorize the rule for a further period of time. This is effectively a sunset provision requiring an affirmative vote of the commission for the rule to remain effective after one year.

The reason for this is that I have significant concerns about the potential impact of the rule on the commission's enforcement and litigation. There are two justifications that have been offered in favor of the rule. The first is that about a third of employers presented with an offer to conciliate declined to participate, which purportedly reflects a widespread rejection of the conciliation process.” The second is that conciliation results in successful resolution of charges of discrimination in only about 40% of our cause findings.

Absent facts and analysis to support it, I declined to conclude that employers widely reject the conciliation process and there are likely a variety of reasons that some employers may elect not to participate in conciliation. We've conducted no surveys or studies to understand these reasons. We certainly have no evidence suggesting that a lack of information is the reason that employers who do so refused to participate. But even to the extent that this rule is intended to, as the preamble says, “entice” employers to participate, I would ask to what end? An employer's agreement to participate in conciliation is that as  we previously discussed, not an end unto itself. Conciliation only advances the ultimate goal of eradicating discrimination, if it is successful.

That leads me to the second asserted justification for the rule, to the extent that it is intended to improve the success rate for conciliation, where employers do agree to participate. Proponents of the rule had cited no evidence suggesting that these disclosures will actually increase employer's willingness to render the discrimination through successful conciliation. An employer is free to take the information disclosed during conciliation and simply walk away.

In fact, because the ruling anticipates the disclosure of information in mind, even in a good way, reveals the commission’s legal strategies and analyses, I feel it runs the risk of offering respondents an early shot at discovery and providing employers an unfair advantage in litigation. As it was known, the rules threatened us to disturb the delicate balance between our conciliation and litigation programs in a way that [01:51:13 inaudible] concern will ultimately reduce the success of the commission's efforts to eliminate workplace discrimination.

I'm concerned that the disclosures provided for in the rule will undermine our litigation, which as I previously said, is an essential part about toolbox to achieve our statutory mission. Aside from needs and other substantive concerns, I am concerned with the rush process by which this rule was developed without the benefit of a full comment period with no public hearing to take testimony and engage in dialogue with stakeholders and with insufficient opportunity to fully explore the complex issues and interests at stake.

I wish we had granted the request for an extension of the comment period filed by multiple civil rights organizations, many of whom represent charging parties before the commission, and could have provided even greater valuable insights had have they been accorded a full comment period. Even with the aggravated timeframe for public comment on exigent circumstances though, civil rights and human rights organizations rallied to submit robust comments opposing the rule.

Although, I think the preamble to the rule gives an inadequate attention, I note for the record that the overwhelming majority of public comments on the rule came from organizations that unanimously opposed it. Of the 58 comments submitted, only 15 support the rule. In the face of these substantial concerns, a commission should have the opportunity to evaluate whether in fact the rule improves the commission’s work toward eradicating workplace discrimination, or weather as the overwhelming majority of commenters feel, it will cause more harm than good.

Among other things we should look at whether the rate at which employers participate in conciliation improves, whether those conciliations result in successful resolutions, how much ancillary litigation has been triggered by the [01:53:33 inaudible] regulation, how much of commission staff's time is spent on conciliation activities after issuance of the regulation versus before, and whether they're unexpected issues that have arisen with the implementation of the regulation.

I really hope that I'm wrong in believing that the rules will compromise the commission's ability to fulfill its mission. But we won't know how effective it is unless we take the time to evaluate and respond accordingly. The amendment will give the commission an opportunity to pause, engage in the necessary evaluation and take whatever action is required in response. I urge the commission to support this amendment. Thank you.

Dhillon: Thank you Commissioner Samuels. Vice Chair Sonderling, do you wish to speak to Commissioner Samuels’ amendment number 18?

Sonderling: Yeah, I completely hear Commissioner Samuels’ concerns and the issue she's raising, and I think we all agree that we want this to work the right way, but the way this is being proposed in a way that sunsets, I personally don't believe that's how a final rule should be. I think only final rules that are tied to legislation that sunsets eventually should have these provisions, and this is just not the proper mechanism to achieve that.

Dhillon: Thank you Commissioner Sonderling. Commissioner Burrows, do you wish to speak to Commissioner Samuels’ amendment number 18?

Burrows: I do. Conciliation impacts the right of every employee to be free from discrimination, harassment, and retaliation at work. We use this to resolve thousands of charges of discrimination on behalf of working men and women each year. The proposed rule is based on the frankly, as yet untested theory that providing respondents with even more information during conciliation and imposing no similar information sharing requirements on respondents will result in more successful conciliations, more relief for victims and an earlier end to discriminatory practices.

I certainly hope that is so if in fact this rule is passed, but I hear it's probably is not the case. There is certainly no support for that assumption and our experience suggests the opposite. This amendment will allow the commission to reevaluate the rule in one year to determine whether it actually accomplishes its stated purpose. Are the additional burdens that it imposes on the commission actually justified by increased conciliations, greater relief for victims and an earlier end to unlawful employment practices? Does the eventual rule if passed, induce employers to resolve discriminatory practices in good faith, or does it simply encourage gamesmanship and turn the conciliation process into quasi litigation?

Perhaps most importantly, does it result in more challenges to this commission's conciliation process, embroiling the agency in expensive, needless, wasteful, collateral litigation and detracting from our mission? If we, as a commission, are confident that this will advance our mission and I would be the first person to be delighted if it did, then there's no reason that we should object to this amendment. I wholeheartedly support it and I would urge my colleagues to do the same.

Dhillon: Thank you Commissioner Burrows. Commissioner Lucas, do you wish to speak concerning a proposed amendment number 18?

Lucas: Yes, I echo the same points the Vice Chair Sonderling made. I just don't think that this is an appropriate way to handle the concerns that Commissioner Samuels and Commissioner Burrows articulate. If serious concerns arose, which I do not think will happen and hence my support for the rule, the commission in the future should always seek to promulgate a new role. Nothing bars us from doing that.

We don't need a sunset provision to do so. If the majority are seriously concerned about how this is played out, we can always take the traction. I just don't think it's appropriate to automatically create a sunset situation based on speculation that there will be issues. I don't support this amendment.

Dhillon: Thank you, Commissioner Lucas. I don't have anything to add so we will move to a roll call vote on Samuels’ amendment number 18. Vice Chair Sonderling, how do you vote?

Sonderling: For the reason stated before, I respectfully vote no.

Dhillon: Commissioner Burrows.

Burrows: Thank you. I would vote yes.

Dhillon: Commissioner Samuels.

Samuels: I vote yes, and I would just add here that I am heartened by the spirit of this debate and I think that we are illustrating today that our disagreements don't have to divide us or be expressed disrespectfully. I appreciate the comments by my co-commissioners.

Dhillon: Commissioner Lucas.

Lucas: I vote no.

Dhillon: I vote no. The amendment number 18 fails. We'll now move to Commissioner Lucas to offer any comments or questions on the proposed final rule.

Lucas: I don't have anything further beyond the comments that I've already made thus far, so I give back the rest of my time.

Dhillon: Thank you. I'd like to offer some limited comments on the proposed final rule. As the Supreme Court recognized in Mach Mining, conciliation plays an important role in achieving Congress's goal of ending employment discrimination. Congress was very specific in Section 706 of Title VII when it instructed the EEOC that after finding reasonable cause the commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference conciliation and persuasion. Congress limited the EEOC’s ability to commence a civil action until after conciliation fails.

As a result, conciliation is not just a good practice, but it's a statutory requirement and a prerequisite to filing suit. As the Supreme Court noted, “Congress chose cooperation and voluntary compliance as its preferred means,” to remedy employment discrimination. The Supreme Court also noted that conciliation necessarily involves communications between the parties, including the exchange of information and views. At a minimum, the EEOC must, “tell the employer about the claim, essentially what practice was harmed, which person or class, and must provide the employer with the opportunity to discuss the matter in an effort to achieve compliance.”

At the same time, the court recognized that the EEOC has wide latitude and expansive discretion over the conciliation process. Between 2016 and 2019, 41.23% of EEO conciliations were successful. This is an impressive number, and it represents the hard work and dedication of EEO staff. However, I believe that the number can and should be improved upon in order to achieve Congress's preferred means of eliminating employment discrimination. Notably, approximately one third of respondents who receive a reasonable cost finding declined to participate in conciliation.

Faced with these realities, we have looked for a change in approach, a way to increase the number of successful conciliations and increase participation by respondents. Throughout this process, my goal has been to balance the need to recognize Congress's preferred means of eliminating discrimination with the need for the EEOC to maintain its latitude and discretion. The results are the amendments to the procedural conciliation regulations, and I believe that these changes will result in better efficiency and better participation in our conciliation process.

The primary objective is to make conciliation a more powerful tool to halt and remedy discrimination in a greater percentage of charges. By providing information to the employer, a respondent will be able to more effectively assess its potential liability, weigh the risks of discrimination and potentially take action to end the discriminatory practice at issue. By improving the effectiveness of our conciliation efforts, charging parties will benefit.

As other, and my fellow commissioners just pointed out, the EEOC can only litigate a small number of cases that fail conciliation, leaving workers to fend for themselves, resulting in protracted and expensive litigation or no resolution at all. By resolving more cases through conciliation, more victims of discrimination can resolve their claims and disputes.

I believe that the concerns that the final rule frustrate the mission of the EEOC… another grumbling… I believe the concerns that the final rule will frustrate the mission of the EEOC are misplaced. The mission of the EEOC is to prevent and remedy discrimination. Successful and effective conciliation will accomplish that goal. With that, we will turn to our second round of comments and questions. Vice Chair Sonderling, do you have anything further to add?

Sonderling: I do not.

Dhillon: Commissioner Burrows?

Burrows: Yes, I move amendment three.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to speak in support of your proposed amendment number three?

Burrows: Yes. Thank you. This amendment would strike particular quotations and key citations from the preamble that I believe are taken out of context and in apt to the subject matter of this particular rule. I think we should be precise and very scrupulous about our discussion of case law, particularly Supreme Court precedent. In the preamble to the proposed rule, we rely heavily on the Supreme Court's 1982 decision in Ford Motor Company versus EEOC as justification for this rulemaking.

The preamble quotes language from the Ford Motor case about voluntary compliance and delays in litigation to support the proposal that we're considering today. It appears actually three different times in the preamble and it's discussed and cited and quoted rather, in not a great deal of length, but repeatedly. Unfortunately, the quotations are taken out of context. The quoted language is not actually about conciliation at all, which is of course the topic of this proposal. The issue addressed by the court in Ford Motor was whether an employer's unconditional job offer to a discrimination victim cuts off further accrual of back pay liability.

In the passage that is partially quoted in the preamble, the court is discussing delays during litigation, but not in any way related to the benefits of engaging in conciliation versus engaging in litigation. The full quote states that the legal role fashioned to implement Title VII should be designed consistent with other Title VII policies to encourage Title VII defendants promptly to make curative unconditional job offers to Title VII claimant, thereby bringing defendants into voluntary compliance and ending discrimination far more quickly than could litigation proceeding at its often-ponderous pace.

Delays in litigation, unfortunately are now commonplace for some of the victims of discrimination to [02:06:07 inaudible] of underemployment or unemployment before they can obtain a court order awarding them the jobs unlawfully denied them. So that we're sure that our lawmaking doesn't mischaracterize it, I would suggest that we either place it in further context or if my amendment proposed completely strike Ford Motor Company from pages 2, 8 and 28 of the preamble.

Dhillon: Thank you. Vice Chair Sonderling, do you have any comments on Commissioner Burrows’ proposed amendment number three?

Sonderling: I do not.

Dhillon: Commissioner Samuels?

Samuels: I do. Thank you. I support this amendment for the reasons cited by Commissioner Burrows. It's important to ensure accuracy in our citation and interpretation of cases. Use of this citation in the current preamble is I think inappropriately clearly intended to signal the disadvantages of litigation without also recognizing that litigation is a vital and essential component of the commission's toolbox for ensuring equal opportunity in the workplace. We can all recognize, and I think all agree, that both conciliation and litigation are crucial to fulfilling the commission's mission without mis-characterizing the cases in the discussion. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, would you like to offer any comments in response to Commissioner Burrows’ proposed amendment number three?

Burrows: Yes. Briefly. I see no reason to remove these citations. Justice Kagan explicitly cited Ford Motor Company favorably in her opinion in Mach Mining. I will vote no on this amendment.

Dhillon: Thank you. I do not have anything to offer. We'll move to a roll call vote on proposed amendment number three. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows, how do you vote?

Burrows: Thank you, Madam Chair. I vote yes.

Dhillon: Commissioner Samuels, how do you vote?

Samuels: I vote yes.

Dhillon: Commissioner Lucas, how do you vote?

Lucas: I vote no.

Dhillon: I’ll vote no. The amendment fails. Commissioner Burrows.

Burrows: I offer amendment four.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to speak in favor of your proposed amendment four?

Burrows: Yes. Thank you very much. In response to the notice of the proposed rulemaking, two employer, two law firms provided a few examples of conciliation, where in their view EEOC took what they call extreme positions or refused to provide sufficient information. The preamble accepts these assertions about a handful of cases out of the thousands of conciliations the EEOC has conducted over the years.

Specifically, it states that the two firms in question, in quote rather, in similar circumstances, this commission's communications did not describe the act or practice alleged to be discriminatory while and it violated federal law in which persons for class was unlawfully farmed. Of course, we could not statutorily and should not specifically respond to any of the alleged two examples of conciliation specifically cited by the commenters because of course, Title VII, forbids us from making public, anything said or done during conciliation.

That's one of the inherent tensions actually with regulating in this area, which is intended to be informal and flexible and confidential. But the assertion that these communications failed to inform the employer of the practice found to be discriminatory, why the employer violated federal law or who was harmed is incorrect as applied to the whole of our conciliation processes, and I think frankly, unfair to our dedicated career staff who conduct these.

The preamble follows this assertion with a citation to Title VII in Mach Mining and somehow, I think a reader is going to be left with the unwarranted impression that this erroneous statement is something that we endorse. Our regulations already require that within 10 days after the commission receives a charge of discrimination, EEOC must notify the employer of the date, place, and circumstances of the alleged unlawful employment practice. Except in very unusual circumstances, such as when the victim is a minor or there's a serious threat of physical harm, the notice includes the identity of the individual filing the charge.

Where the commission finds reasonable cause that discrimination occurred, it must issue a letter of determination outlining that finding and the reasons for that finding because the commission's existing procedures already ensure that the exchange of this basic information occurs. It seems that this is not strictly necessary and certainly I would urge that we not endorse the characterizations here.

I think that I would also like to add that our successful rate of conciliation has only increased since Mach Mining was decided and legal challenges to our conciliation procedures have become thankfully, far less frequent. When employers have decided to challenge the EEOC’s conciliation in court, those challenges have since Mach Mining, almost uniformly failed and the commission has successfully defeated conciliation challenges in dozens of cases across the country, winning motions to strike, motions to dismiss and motions for summary judgment on conciliation.

Because we are certainly meeting our statutory obligations without the proposal here, and I would prefer not to suggest otherwise. The last I would say on that is that I think that I want to be clear here that I'm not suggesting that judicial review is not appropriate in the fashion that the Supreme Court has said. I am simply concerned that we are now inviting something far more onerous and different from that.

Again, I would ask that we adopt this amendment to strike the factually inaccurate comments about the information that EEOC currently provide to respondents and the additional citations that follow. I will reserve the rest my time for rebuttal.

Dhillon: Commissioner Sonderling, do you have any comments to offer?

Sonderling: No.

Dhillon: Commissioner Samuels, do you wish to speak concerning proposed amendment number four?

Samuels: I do, briefly. Thank you. I support striking this text as well as other language that I think is addressed in Commissioner Burrows’ amendment number five, because I think it is gives undue weight to what is really nothing more than unsupported anecdotes from a limited number of commenters. I find it difficult to believe that commission staff routinely present conciliation demands without providing any information about how the employer violated the law.

In fact, I firmly believe that commission staff operate professionally in good faith with a bedrock commitment to integrity and accomplishment of the commission's mission to eliminate workplace discrimination. Repeating these sources unverified [02:14:25 inaudible], maligns the reputation of hardworking commission staff, with no basis and evidence and no pushback. I support this amendment and I encourage my colleagues to do the same.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you wish to speak concerning proposed amendment number four?

Lucas: Yes. While I echo Commissioner Samuels’ general desire to only want to think the very best of our hardworking staff, and I have every confidence that in the vast majority of cases, that what is discussed by the commentator is not the standard course of behavior, I am concerned that this amendment would effectively declare that the commentator’s recounting history is inaccurate and that the commission acted differently in these specific instances that they are recounting without us offering any evidence as to that.

I don't think it's our place to just strike this here. The rule is designed to ensure that the behavior that's alleged by this commentator does not happen ever and the veracity of the commentator’s recitation, notwithstanding. Accordingly, I do not support striking this text and don't support this amendment.

Dhillon: Thank you. We'll move to a roll call vote on proposed amendment number four. Vice Chair Sonderling, how do you vote?

Sonderling: I vote no.

Dhillon: Commissioner Burrows.

Burrows: I vote yes.

Dhillon: Commissioner Samuels.

Samuels: I vote yes.

Dhillon: Commissioner Lucas.

Lucas: I vote no.

Dhillon: I vote no. The amendment fails. Commissioner Burrows.

Burrows: I offer amendment five.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to speak in favor of your amendment?

Burrows: I do. It's related. I'll be very brief. This preamble or rather this amendment would strike some language that I think can only fairly be construed as inflammatory and frankly misleading as to the run of conciliations that the EEOC addresses. The preamble quotes accusations from two law firms that are amongst the minority of commenters that supported this rule. The inclusion of the gratuitous comments in the preamble serves just to frankly, unnecessarily denigrate, I fear, the commission's enforcement staff, who worked so hard tirelessly every day to advance the mission of this agency.

I understand that was not the intent, but in reading it, I think it is certainly the effect and I would also say in response to the debate with respect to the previous amendment, is that while I don't think that accepting this amendment or frankly others would create an implication that we have looked behind any particular comments or that we are casting aspersions necessarily on a particular substantive conciliation. My concern is that they are taken, one or two comments are taken here and lifted up as though they were somehow examples. Again, I don't for a minute suggest that with the intent, but I'm afraid that's the way it is likely to be read.

Again, our statutory mandate is to eradicate discrimination, and it's not realistic to think that an [02:18:21 inaudible] to have discriminated will agree to take the steps needed to end discrimination, prevent it in the future and provide remedy to the victim. While I believe that most respondents act in good faith and engage in conciliation in, and make that determination in a reasoned way that is completely valid. The unfortunate truth is that there is some minority subset of respondents that refuse to acknowledge their wrong delay or change the discriminatory practices.

There will always be a certain percentage of cases that do not conciliate for multiple of reasons that are in no way, a reflection of ill motives on the behalf of EEOC employees. Accusations made by these commenters about the agency’s culture and the intent to extort employers are frankly offensive, and the commission should not be repeating them in the preamble of this proposal.  I therefore move that the commission adopt amendment nine to strike these inflammatory statements from the preamble. I will reserve the balance of my time for a rebuttal.

Dhillon: To be clear, you meant amendment number five, Commissioner Burrows?

Burrows: Yes, I apologize.

Dhillon: Thank you. Vice Chair Sonderling, do you have any comments concerning proposed amendment number five?

Sonderling: I do not.

Dhillon: Commissioner Samuels?

Samuels: I do not.

Dhillon: Commissioner Lucas.

Lucas: For the same reasons that I can't support amendment number four, I also cannot support number five. I just don't think it's our job to police commenters, even if we disagree with what they're asserting.

Dhillon: Thank you. I do not have anything to add. We'll move to a roll call vote on proposed amendment number five. Vice Chair Sonderling.

Sonderling: No.

Dhillon: Commissioner Burrows.

Burrows: I vote yes.

Dhillon: Commissioner Samuels.

Samuels: Yes.

Dhillon: Commissioner Lucas.

Lucas: I vote no.

Dhillon: I vote no. The amendment fails. Commissioner Burrows.

Burrows: Thank you. I would like to offer a number of amendments, but I may also want to be conscious of the time. I'm thinking of offering a privileged motion to take the break now, but I will certainly defer to the Chair's preference.

Dhillon: I'm fine with taking a break now. Why don't we take a 10-minute break? We will resume at 3:40 PM Eastern Time. Thank you everyone. We are resuming our meeting and Commissioner Burrows had the floor when we took a break, so I'll turn the floor back over to Commissioner Burrows.

Burrows: I offer amendment six.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to speak in favor of your amendment?

Burrows: Yes. Thank you. To start, I would like to say that the amendments would add language explaining the analysis conducted by our Office of Enterprise Data and Analytics. The preamble talks about assertion by two commenters that this commission routinely demands the statutory maximum for compensatory and punitive damages at the outset of conciliation. As I mentioned earlier, the agency's Office of Enterprise Data and Analytics, or OEDA, has been diligently collecting and reviewing data related to conciliation.

OEDA’S analysis refutes the assertion by the commenters that the EEOC routinely makes conciliation demands at or near the statutory cap. According to OEDA, the average first offer by the commission in conciliation is only about 42.4% of the statutory maximum in single claimant cases, and 39.7% of the statutory maximum in multiple claimant cases. When multiple claimant cases and single claimant cases are considered together, the average first offer is only about 40% of the statutory maximum.

Significantly, OEDA found no relationship between the commission's first offer as a percentage of the statutory maximum and the success or failure of conciliation in most cases. The proposed amendment will make clear that the commenters’ assertions are directly contradicted by available data. Accordingly, I urge my colleagues to support amendment six and it would add this explanatory language. I will reserve the remainder of my time for a rebuttal.

Dhillon: Thank you. Vice Chair Sonderling, would you like to offer any comments?

Sonderling: No.

Dhillon: Commissioner Samuels?

Samuels: Yes. I support this amendment. I think that it gives a more accurate rendering of OEDA’s analysis of the conciliation project data contrary to the assertions of a few commenters. OEDA’s analysis shows that the data does not support a contention that the commission misuses statutory paths in formulating conciliation proposals. The preamble to the rule should acknowledge this and so I urge my colleagues to support this amendment.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas.

Lucas: No comment from me.

Dhillon: I don't have anything to add. We'll move to a roll call vote on proposed amendment number six. Vice Chair Sonderling?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels.

Samuels: Yes.

Dhillon: Commissioner Lucas.

Lucas: I vote no.

Dhillon: I vote no. The amendment fails. Commissioner Burrows.

Burrows: Thank you. I offer amendment seven.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, would you like to speak in support of your proposed amendment?

Burrows: Yes. Amendment seven would strike the preamble’s assertion that the proposed changes to the EEOC’s conciliation process would primarily benefit victims and potential victims of discrimination, as well as the public. I agree that conciliation is a critical component of Title VII and an important tool to fulfill our statutory mission of eradicating employment discrimination. On that I think we probably are unanimous. Resolving cases early of course can be a win-win for workers and for employers and that is also a win for this agency.

When the resolution prevents future discrimination, it's certainly a win for the public. However, it's not fair or accurate to state that the primary beneficiaries or the proposed rule are victims of discrimination, potential victims of discrimination or the public. Notably, a single organization that represents workers submitted comments in support of the proposal. To the contrary, workers' rights and civil rights organizations uniformly opposed the rule change. Believing it would be detrimental to workers in the public [02:35:51 inaudible].

Workers’ rights organizations criticized the proposed rule for tipping the scale in favor of employers in conciliation, disadvantaging working people and undermining EEOC’s ability to remedy employment discrimination. For example, one of the commenters stated that the proposed rule, “would fundamentally impede the mission of the EEOC as the chief enforcer of the nation's anti-discrimination statutes and would do significant harm to the nation's most vulnerable workers.” Another commenter stated that the proposed rule will not, “benefit the EEOC and will hurt the workers the agency was created to protect.” Yet another commenter stated that the proposed rule, “flipped EEOC’s mission on its head by seeking to advantage employers over workers.”

While the commission may disagree with the comments submitted by workers' rights and civil rights organizations, I personally do not, but we should not go so far as to assert that the rule primarily benefits victims of discrimination, when we have no support for this assertion, and when those who actually represent the victims, day in and day out and are closest to these issues, strongly disagree. Accordingly, I urge my colleagues to support amendment eight to strike the inaccurate assertion that discrimination victims are the primary beneficiaries of this proposal. I will hold the remainder of my time for rebuttal.

Dhillon: Thank you. Vice Chair Sonderling, do you wish to speak on proposed amendment number seven?

Sonderling: I have no comment.

Dhillon: Commissioner Samuels.

Samuels: I agree that conciliation is an important tool and that promoting voluntary compliance with the law creates benefits for both employers and employees, but to assert that those subject to discrimination are the winners in this particular rule, much less the primary beneficiaries of it, seems vicious to me so I will vote to approve the amendment.

Dhillon: Thank you. Commissioner Lucca.

Lucas: While I respect the opinions of Commissioner Burrows and Samuels, I ultimately disagree with the premise behind this amendment. My opinion, regardless of what various commenters have said, it's patently clear that the resolution of charges in any manner, including the conciliation that results in relief to a victim of discrimination inherently, primarily benefits such victims as opposed to any other party. An approved and clear conciliation process will resolve more resolutions, providing relief to victims of discrimination and using conciliation versus other means of acquiring that relief will give them that relief sooner.

That's going to especially benefit, as I said in my opening, the most vulnerable victims of discrimination, those who don't have the means, knowledge, or ability to retain a lawyer nor even be represented by certain advocacy groups who may have submitted comments opposing this role. As a result, I cannot support this amendment. Thank you.

Burrows: Madam Chair, I would like to rebuttal just briefly. Oh, sorry, please go ahead.

Dhillon: Commissioner Burrows, the rules of governing amendments means that people only speak once concerning an amendment and you have spoken in support of your amendment.

Burrows: I did reserve the balance of my time.

Dhillon: That's not appropriate in the amendment process. In the amendment process, everyone has the opportunity to speak once in support of, or in opposition to an amendment. We’ll move on…

Burrows: Observing the right to object. I'd like to just understand. I think this is a place where I would make a point of order so that the record is clear. I'm not aware of any such a rule in Robert's Rules and I think that as a result I'd like to appeal the ruling of the Chair.

Dhillon: The appeal needs a second. Is there a second?

Samuels: This is Commissioner Samuels. I'll second the appeal.

Dhillon: All right. The issue before the commission is who is in favor of sustaining the Chair's decision on this point of order. Vice Chair Sonderling, how do you vote?

Sonderling: Yes.

Dhillon: Commissioner Burrows.

Burrows: I vote yes as well and as a point of clarification, is it not the case that the decision should be made by the legal counsel?

Dhillon: No. Commissioner Burrows, when you made the point of order and when you appealed my overruling of your point of order, you then appealed it and so you put it to the commission for a decision. Just so that we're clear, the question that the commission is now voting on in response to your appeal, which was seconded, was if the commissioners are in favor of sustaining the Chair's decision, meaning upholding my decision on your point of order.

Burrows: Thank you and [02:41:24 crosstalk] as a further point of clarification so that I understand, is there a particular part of Robert's Rules that I should be looking at, or some other rule of the commission that would lead to this conclusion?

Dhillon: It's the rules concerning points of order which you raised, and which are entitled to be appealed.

Burrows: I'm not aware of any such limitation. I will vote a yes with respect to the appeal.

Dhillon: Commissioner Burrows, I just want to clarify so that… I’ll again state what the commission is considering, it’s whether to uphold my overruling your point of order.

Burrows: Thank you for that clarification. It's very much appreciated both for the record and for my own sake. I thank you, Madam Chair. I am not in support. I maintain my appeal, particularly within the relatively big nature of explanation, but it will be, either way that the appeal is resolved, it will be helpful to have that as we continue the debate.

Dhillon: I take it you vote no, correct?

Burrows: That's correct. Thank you.

Dhillon: Thank you. Commissioner Samuels.

Samuels: If I’m following what we're voting on, I vote no.

Dhillon: Commissioner Lucas.

Lucas: I vote to sustain the Chair's decision.

Dhillon: As do I. The Chair's decision on the point or ruling on the point of order is sustained. A commissioner may only speak once in support of, or in opposition to an amendment. I believe we were voting on amendment number seven. Vice Chair Sonderling had voted no. Commissioner Burrows, I apologize if you voted, I did not capture it. Could you vote on proposed amendment number seven?

Burrows: Yes. I vote yes.

Dhillon: Thank you. Commissioner Samuels.

Samuels: I vote yes on amendment seven.

Dhillon: Commissioner Lucas.

Lucas: I vote no on amendment seven.

Dhillon: I vote no. The amendment fails. Commissioner Burrows.

Burrows: I offer amendment eight.

Dillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, would you like to speak in favor of your amendment?

Burrow: Yes. Thank you very much. I offer amendment eight to accurately [02:44:21 inaudible] the degree of opposition that this proposal received from former EEOC officials and employees. 44 distinguished former officials and employees of this commission submitted comments, opposing the proposed conciliation document. The commenters included former EEOC general counsel and former acting chair, as well as investigators, enforcement supervisors and managers, trial attorneys, regional attorneys, local office directors, area office directors, district directors, social scientists, program analyst, and administrative judges.

Collectively, these commenters worked for the commission for decades on thousands of cases and served the agency under the Nixon, Ford, Carter, Reagan, George H. W. Bush, George W. Bush, Obama, and Trump administration. These dedicated public servants took the time to submit comments in the midst of a pandemic and a presidential election and despite an unusually short comment period. Based on their extensive experience, they concluded that the commission's proposed changes to the conciliation process are, “a mistake.”

Many of the commenters worked at the agency before Mach Mining, when employers routinely challenged this commission conciliation efforts in court. They caution that if the commission adopts the proposed rule, employers inevitably will challenge in court, whether the EEOC has fulfilled its self-imposed conciliation procedures. The commenters argue that the proposed rule will encourage the gamesmanship by respondents and result in endless court battles over a process that Congress intended to keep confidential.

Ultimately, the commission may not agree with the comments submitted by our esteemed former colleagues. I certainly do, but we should never minimize their objections or downplay their number. Accordingly. I urge my colleagues to adopt amendment number eight to more accurately reflect the degree of opposition to the proposed rule from these former EEOC officials and employees. [02:46:43 inaudible].

Dhillon: Vice Chair Sonderling, do you wish to speak concerning proposed amendment number eight?

Sonderling: Yes. I just want to thank everyone who commented on this proposal. As I said in my opening statement, no matter how people felt about the proposal or anything we're doing at the EEOC, as Commissioner Burrows noted, that's a very valuable tool, and I can just assure the general public that every comment was reviewed thoroughly and to continue to submit comments on everything we're doing, because that is the best way how we can frame these rules and regulations. Every piece of information that was received in comments were taken into account into this final rule that the public will see when they have a chance to read it.

Dhillon: Commissioner Samuels, do you have any comments to offer concerning proposed amendment number eight?

Samuels: Thank you Chair Dhillon. I agree with Commissioner Burrows that the comments filed by former EEOC employees were incredibly powerful and that the combined expertise of all the signatories suggest that we ought to give those views particular weight. I think that the amendment as drafted would indicate the seriousness with which these comments were and should be considered, and so I support the amendment.

Dhillon: Thank you. Commissioner Lucas.

Lucas: I don't support this amendment. I don't think this change is necessary. I think that we had acknowledged that there is an opposition, but I don't think that a view gains or loses merit simply because a certain individual proposes it. Rulemaking is about reasonableness. Both of the proposal and comments, which should be evaluated neutrally and rationally. I don't ultimately think that this additional detail is necessary. Thank you.

Dhillon: Thank you. I don't have anything further to add so we'll move to roll call vote on proposed amendment number eight. Vice Chair Sonderling, how do you vote?

Sonderling: Respectfully, no.

Dhillon: Commissioner Burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels.

Samuels: I vote yes.

Dhillon: Commissioner Lucas.

Lucas: I vote no.

Dhillon: I vote no. The amendment fails. Commissioner Burrows.

Burrows: I offer amendment nine.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to speak in support of your proposed amendment nine?

Burrows: Yes. Thank you, Madam Chair. As drafted, the preamble overemphasizes the support that the proposed rule had and it severely downplayed the opposition, and just from an administrative procedure that perspective that is concerning as a legal matter. In fact, most of the comments the commission received opposed the rule change, but you couldn't really tell that if you, obviously we state that, but if you looked at the amount of time we spent on the opponents versus the supporters, it's fairly imbalanced.

The commission received a total of 58 comments in response to the notice of proposed rulemaking. There were 33 opposed to the proposed rule compared to are just 15 in support, yet the preamble devotes just a single paragraph to all of the comments submitted in opposition. By comparison, it spent more than two full pages describing the few comments submitted in support of the proposed rule.

If we are persuaded in the soundness of our proposed rule, you should be able to confront the commenters criticism of the proposal head on. Instead, the preamble gives short shrift to the objections we received for more than two dozen organizations representing workers and the civil rights community. Frankly, I find this telling. Failure to include a balanced discussion of the public comments the commission received in response to its proposed rulemaking is unfair to the public and exposes our rulemaking to challenge and arbitrary [02:51:03 inaudible].

I frankly don't understand why those who support the rule would wish to do that. I do not support the rule, but as the, simply from a legal perspective, as a good governance perspective I am concerned about that imbalance. I would therefore urge my colleagues to adopt amendment nine [02:51:24 inaudible] a robust and balanced discussion of the public opposition to this rulemaking.

Specifically, I would strike the first paragraph under the heading; comments opposing the rule change in the commission's responses, and substitute the following: the majority of comments the EEOC received opposed to rule change. These comments criticize the rule for weighting the conciliation process in favor of employers, increasing the risk of retaliation against workers, chilling potential claimants and witnesses from the reporting discrimination and undermining the commission's ability to prevent and remedy discrimination.

Commenters also noted that the proposed rule would impose unnecessary burdensome requirements on the commission that are inconsistent with Title VII and [02:52:08 inaudible], jeopardize the commissions attorney work product, attorney-client and deliberative process privileges and expose the commission to ancillary litigation where a conciliation agreement is not reached.

The commenters also stated that the rule was premature in light of the ongoing conciliation pilot, challenged the shortened period allowed for public comment and faulted the commission's economic impact analysis for failing to consider costs to charging party and other aggrieved individuals or the societal cost of discrimination.

Multiple commenters called on the commission to withdraw the proposed rulemaking in light of the significant concerns they raised and the potential impact of the rule on the commissions law enforcement function. Frankly, I would like to add that some of these concerns were actually addressed, so I don't see this amendment in any way undermining the rule itself. With that, I yield back the balance of my time

Dhillon: Vice Chair Sonderling, do you like to speak in support of proposed amendment number… speak concerning proposed amendment number nine?

Sonderling: Yeah. I cannot support this amendment, again, when this rule is final and the public can read it, they will see that the comments were all addressed, and this additional language is not necessary because the rule will speak for itself.

Dhillon: Commissioner Samuels.

Samuels: I agree that the preamble gives short shrift to the overwhelming majority of comments that opposed this rule, summarizing them in a paragraph while giving extended attention to the limited number of comments filed in support of the rule. I think the opponents concerns deserve a full recitation than the preamble, which should make clear both the volume of opposition to the rule and the gaps and breadth of the arguments made to challenge it. Therefore, I support commissioner Burrows’ amendment and encourage my colleagues to do the same. Thank you.

Dhillon: Commissioner Lucas.

Lucas: I appreciate the spirit of the amendment, but ultimately, I think that the preamble already sufficiently reviews the specific comments opposing our rule and therefore this proposed insertion is unnecessary. Thank you.

Dhillon: Thank you. I do not have anything to add, so we'll move to a roll call vote. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote no.

Dhillon: I vote no. The proposed amendment 9 fails. Commissioner Burrows?

Burrows: I offer amendment 10.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. Second.

Dhillon: Commissioner Burrows, do you wish to speak in favor of your amendment?

Burrows: Yes, thank you. Briefly. It's important, I think, that this commission fairly and accurately characterize the comments received in response to a notice of proposed rulemaking. As noted, the preamble downplays the comments, opposing the rule, likewise, inflates the comments or inflates, exaggerates those comments that support.

For example, I was surprised to see that there's a general reference to members of Congress submitting comments, and I would like to make clear in the record that there were two Republican members of Congress who submitted a single joint letter in support of this proposal, which was, I should make clear, very much appreciated, but it certainly was not, and I think that should be reflected in the rule. Because the commission chose this single letter.

To single this out, I think it's important to be completely accurate about the scope and the nature. This is a bipartisan body and it’s definitely a broad and important issue, so I think this is a straightforward amendment that is clarifying and would ensure greater accuracy. I urge my colleagues to support it. Thank you.

Dhillon: Thank you. Vice Chair Sonderling, do you have anything to contribute to, or would you like to speak concerning proposed amendment 10?

Sonderling: No.

Dhillon: Commissioner Samuels?

Samuels: I support this amendment. It’s the mirror image of amendment 9, and I believe we should accurately characterize the comments filed both in support of and in opposition to the regulation. I urge my fellow commissioners to vote for this amendment.

Dhillon: Commissioner Lucas?

Lucas: For the same reasons that I have not supported prior amendments. I don't support this one here. Thank you.

Dhillon: I don't have anything to add, so we'll move to a roll call vote. Vice Chair, Sonderling?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: Yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote no.

Dhillon: I vote no. The amendment fails. Commissioner Burrows?

Burrows: I would move to amendment 12. [02:57:45 crosstalk].

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to [02:57:55 crosstalk] in favor of your proposed amendment 12?

Burrows: Thank you, Madam Chair. I'm having a bit of a feedback on my [02:58:03 inaudible] commissions reliance on assumptions rather than data in justifying the proposed rule. I'm offering this to more accurately characterize the analysis, and again, I'm looking forward to my upcoming briefing on this, but this analysis that was conducted by the agency's Office of Enterprise Data and Analytics. In an attempt to correct the lack glaring lack of support, frankly, for some of the assumptions in this rule, the preamble was revised, and it now cites to analysis conducted by the EEOC Office of Enterprise Data and Analytics or OEDA.

[02:58:45 inaudible] that OEDA conducted a “comprehensive” analysis of the recent conciliation fields. Unfortunately, that analysis, as I understand it was actually not comprehensive. This is certainly no criticism of the excellent OEDA staff who worked tirelessly and diligently to collect and compile and analyze voluminous data from our 53 offices across this country. The reason that analysis is not comprehensive is that it was entirely driven by the request that was put to OEDA.

Initially as I understand it, that request was to address two common complaints from respondents. First, that EEOC routinely demands at or near the statutory caps on conciliation, and second, that EEOC refused to meet with respondents in conciliation. OEDAs analysis did not support either assertion. To the contrary, the average demand by the commission is just 40% of the statutory maximum cap and OEDA did not find any relationship between the first offer as a percentage of the statutory maximum and the success or failure of conciliation in those cases. In cases in which the employer requested a conciliation meeting, 75% of these requests were granted.

As I understand it, OEDA was directed to analyze whether certain aspects of a charge or the process had an impact on the success or failure of conciliation in several places. In its report, it did know that there may be other factors that were not explored in that analysis and  could shed further light on conciliation success or failure. But OEDA did not analyze those factors because it was not asked to do so. The preamble discussion of OEDAs analysis further asserts that, by providing basic information about the facts and legal arguments behind the claim, the commission increases the likelihood that respondent will recognize the merit of the commission position and conciliate.

That assertion is wholly unsupported by the analysis. The draft report specifically notes that OEDA did not analyze the reasons why respondents declined to participate in conciliation, and there's no other data to support that assertion, in the preamble, that providing respondents with more information will induce successful outcomes in conciliation. There's also no anecdotal support for the claim that giving employers more information will result in more employers engaging in conciliation.

Indeed, none of the five comments of conciliation [03:01:16 inaudible] support of the rule claimed that a lack of information, whatever the reason, the commenters or their clients refused to engage in the EEOC conciliation process. This amendment will clarify the scope of OEDAs analysis and explain that, although OEDA did not analyze why employers declined to participate in conciliation, the commission hopes that by providing certain basic information to respondents, it will increase the likelihood of successful conciliation. I therefore urge adoption of amendment 12.

Dhillon: Vice Chair Sonderling, do you wish to speak to proposed amendment 12?

Sonderling: No.

Dhillon: Commissioner Samuels. Commissioner Samuels, would you like to speak to proposed amendment

Samuels: I’m so sorry. I’ve been talking to myself while on mute. I support this amendment. I believe it provides a more balanced and accurate depiction of the OEDA analysis, and I urge my fellow commissioners to support it as well. Thank you.

Dhillon: Commissioner Lucas.

Lucas: I don't think that the current version of the paragraph inaccurately describes the analysis and therefore, I don't think these changes are necessary. As a result, I'm not going to support the amendment. Thank you.

Dhillon: Thank you. I don't have anything to add, so we'll go to a roll call vote on proposed amendment 12. Vice Chair Sonderling, how do you vote?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote no.

Dhillon: I vote no, so the amendment fails. Commissioner Burrows?

Burrows: I offer amendment 13.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, would you like to speak in favor of your proposed amendment 13?

Burrows: Thank you. This amendment would clarify what information is covered under subsection 1626.24(d)(4). This subsection provides that the commission should inform respondents if the commission has designated particular cases as systemic, class or pattern or practice. As written, I thought it was unclear exactly what it is intended to cover. The label the case as systemic as an internal designation that is sometimes used by the EEOC, but it doesn't convey any substantive information about our findings or conciliation process.

It does exhibit, I'm happy to say that this section would explicitly prohibit disclosure of privileged information. That's positive, but setting aside that particular issue, and I would reiterate my appreciation for in  particular Commissioner Lucas' office and the other colleagues, Commissioner Sonderling, and the Chair on that point. But setting aside that potential privilege issue, disclosing that agency staff have at some  point labeled something as systemic doesn't seem to add relevant information to conciliation.

Also, the designation of pattern or practice during investigation or conciliation is actually a legal term of art, and it is to refer to particular methods of proof used in litigation. That often comes at a later point, not at conciliation, but if we are so unfortunate that the conciliation  fails, we might make those determinations as to what standard of proof we would need.

I think that the information that this was really intended to get at is how many individuals might be involved, which goes to the class issue, which was already addressed, and this would further go to, I think, the pattern or practice designation is seeking to reach, which is the information employers really need, just look how big is this case. I'd urge my colleagues to support this amendment, to modify the language of the subpart so that we can clarify exactly what information would be revealed. Thank you

Dhillon: Vice Chair Sonderling. Do you have anything, do you want to speak to proposed amendment 13?

Sonderling: I have no additional comments.

Dhillon: Commissioner Samuels?

Samuels: My understanding is that this is a technical amendment that would provide clarity and avoid potential confusion. I think its intent is simply to explain in plain English what the rule is intended to ask commission staff to advise respondents and to avoid the use of jargon or unfamiliar terminology. I think it does help to execute the intent of the regulation, and so I support this amendment.

Dhillon: Commissioner Lucas.

Lucas: I have no comment.

Dhillon: I'd like to briefly address this proposed amendment. I think that it is important that the commission advise respondents in writing at the time of conciliation whether a case has been designated as systemic, class or pattern and practice. That's what's called for in the current language. The term systemic is a term that is used within the commission. It's also used externally. Indeed in 2006, the commission published an extensive report by a task force, the systemic task force,  about a potential systemic program at the EEOC.

In 2016, the commission issued another report discussing the progress that it had made in the systemic program over the past 10 years following the issuance of the systemic task force report. Moreover, the agency's performance measures that the agency is required to report onto Congress include a performance measure around its systemic program.

Given the integral part of the systemic program in the EEOCs work, I think that parties to conciliation are entitled to know if the particular charge that is being conciliated is one that the commission has designated as systemic, and likewise, if they have designated as class or as a pattern and practice, and for that reason I think that the language in the proposed final rule is appropriate. We'll move to a vote on proposed amendment 13. Vice Chair Sonderling, how do you vote?

Sonderling: For the reasons as stated by the Chair, I vote no.

Dhillon: Commissioner Burrows?

Burrows: Thank you, Madam Chair. I would actually vote yes.

Dhillon: Commissioner Samuels?

Samuels: I'll vote yes.

Dhillon: Commissioner Lucas?

Lucas: For the reasons stated by the Chair, I vote no.

Dhillon: I vote no as well. The amendment failed. I believe now we can move on to the second round of comments or questions by Commissioner Samuels. Commissioner Samuels, do you have anything further to offer during the second round?

Samuels: I just want to inquire whether Commissioner Burrows has any additional amendments, because I believe that there would have been one additional one that she intended to make.

Burrows: Thank you, Commissioner Samuels. If you are yielding, is that I do have just one last amendment.

Dhillon: All right, Commissioner Burrows. What is your proposed amendment?

Burrows: Thank you, Madam Chair. This is one that I have not circulated, I don't believe, unless it was later today my staff may have done it, because I did not notice this concern in the late breaking changes that were sent to the commission about 24 hours ago on this proposal. But I wanted to make it now. The amendment would read as follows on page 40, “Strike the following sentence on the end of the second full paragraph.” The sentence reads as follows; This is not a major rule as the term is defined in 5 USC 804 (2). I propose striking this language. I'm sorry. That's the motion.

Dhillon: I’m sorry. Commissioner Burrows, is there a second to your proposed amendment?

Samuels: This is Commissioner Samuels. I’ll second.

Dhillon: Thank you. Commissioner Burrows, do you wish to speak in support of your proposed amendment?

Burrows: Yes. Thank you. There's three significant reasons why I would strike this language. First, the commission is actually not authorized to determine whether a rule is a major rule for purposes of the Congressional Review Act, at least as I understand it, the Act explicitly provides that only the administrator of the Office of Information and Regulatory Affairs of the Office of Management Budget can make such a determination. That's strictly, again, citing from 5 USC 804(2), any determination made by the commission regarding the status of the rule would therefore have absolutely no legal force.

Secondly, I strongly object to the Chair’s, frankly, respectfully to the same inclusion of the language in the final rule, less than 24 hours before we met. This late-breaking change did not allow my office at least to sufficiently assess whether the final rule could constitute a major rule. Again, that's a determination for OMB anyway, but even if EEOC were simply adding the language to provide input, more time would be needed to consider the accuracy of this statement.

The addition of the language raises a serious issue that I believe deserves more time and attention than the short shrift given through a late, a last-minute addition. For all the reasons I've mentioned, this proposal would result in wasteful and frankly, unnecessary litigation delays that would have a devastating impact on our ability to protect working men and women from discrimination, harassment, and retaliation in the workplace.

Third, and finally, there's not really an explanation for why that change was made, and when it was circulated the commission, the fact that the change was not explained, and the language was abruptly added to the rule less than 24 hours after the Georgia Senate election occurred suggests that it may have been not a legal conclusion, but rather an attempt to potentially shield this proposal from scrutiny by Congress under the Congressional Review Act.

There's no legal reason I can see why this text actually needs to be added. We debated the proposal in August, discussed it at length internally. It was improved by OMB, all without this language. Certainly, the majority of comments we received seem to suggest a very different conclusion. Under these circumstances, we should not support last minute changes to a proposed rule that lacked sufficient explanation or support, and I would encourage the rest of the commission to approve this amendment proposal.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have anything to add, to speak to concerning the proposed amendment?

Sonderling: I don't specifically, other than these documents go through a review process and especially through our Office of Legal Counsel, so I will defer to that.

Dhillon: Commissioner Samuels?

Samuels: Like Commissioner Burrows, I'm concerned about the unexplained addition of this language at the 11th hour, the language wasn't contained in any version of the rule before yesterday, and we've got no explanation for why it was insured with them. For those reasons, and because I agree with Commissioner Burrows that the commission does not have the authority ultimately to determine whether the rule is a major rule or not, I will vote in favor of this amendment

Dhillon: Commissioner Lucas?

Lucas: I have no comment. Thank you.

Dhillon: I don't either. I move to a roll call vote. Vice Chair Sonderling, how do you vote on the proposed amendment?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels?

Samuels: I vote yes.

Dhillon: Commissioner Lucas?

Lucas: I vote no.

Dhillon: I vote no as well. The proposed amendment fails. Now we'll move back to our round of comments and questions. Commissioner Samuels, do you wish to speak further concerning the proposed final rule?

Samuels: I just have a few closing comments. The draft final rule has been improved in many ways from the proposed rule, but I remain concerned that it's ill-conceived, a solution in search of a problem, an arbitrary and capricious exercise of the commissions power and a document that will cause significant harm to the commission's ability to achieve its statutory mission. For five decades, we've tackled important and difficult policy legal and operational issues through bi-partisan deliberation and with robust stakeholder input. I think this process has been compromised by the breakneck pace at which this rulemaking has proceeded.

Among those opposing the rule as we discussed previously was a distinguished group of retired and former EEOC senior employees and executives, whose years of service to the commission stretch back to the earliest years of its establishment. I think we need to take their concerns truly seriously. Again, although some changes have been made to respond to their concerns in the draft final rule, I still believe the rule is unsupported by any data suggesting that it will advance the ultimate goal of our statute, which is to remedy discrimination.

The process by which it was conceived and developed was flawed. As I said, I worry that it will be found to be an arbitrary and capricious exercise of the commission's authority that puts a thumb on the scale in favor of the very employers the commission has found reasonable cause to believe violated our civil rights laws. If it's adopted, I fear it will do damage to the commission's ability to fulfill its mission, to prevent and remedy unlawful discrimination. For all of those reasons, I will vote against this draft final rule, but I thank you for the opportunity to consider it at this meeting. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas?

Lucas: I have no further comments. I yield my time.

Dhillon: Thank you. I do not have any further comments either. I thank all of my fellow commissioners for their thoughtful consideration and careful consideration of the proposed final rule. With that, I move to adopt the final rule updating the commissions conciliation proceedings as presented. Is there a second?

Sonderling: I second.

Dhillon: Thank you. We will go to a roll call vote for purposes of clarity of the record. Vice Chair Sonderling, how do you vote?

Sonderling: I vote yes.

Dhillon: Commissioner Burrows?

Burrows: Thank you, Madam Chair. I strongly oppose it and so, I will vote no.

Dhillon: Commissioner Samuels?

Samuels: I vote no.

Dhillon: Commissioner Lucas?

Lucas: I vote yes.

Dhillon: I vote yes, so the motion carries. We have been scheduled to take a break, but since we're a little off schedule and we took a break less than an hour ago, I'm inclined to move to our next agenda item and take a break at about five o'clock Eastern time, unless anyone has any objection.

Then we'll move to our next agenda item, which is the consideration of a formal opinion letter concerning individual coverage health reimbursement arrangements under the ADEA. We will receive a presentation on this from our legal counsel, Andrew Maunz.

Andrew: Thank you, Chair. Now before the commission for consideration is a formal opinion letter that answers questions concerning individual choice health reimbursement arrangements, or ICHRAs, in potential liability under the Age Discrimination and Employment Act or ADEA. The letter is being issued pursuant to the EEOCs opinion letter authority under section 7(e) of the ADEA and the commission's ADEA regulations, 29 USC 626.21.

In June of 2019, the Departments of Health and Human Services, Treasury and Labor, otherwise known as the tri departments, issued regulations establishing that employers could meet their healthcare obligations under the Affordable Care Act through ICHRAs. ICHRAs are a benefit in which an employer deposits money into an account for employee, which the employee then uses to purchase health insurance on their own.

Several months ago, career staff of the tri departments reached out to the career staff of the Office of Legal Counsel and said that they had received a lot of questions from stakeholders about implementing this rule and potential lot ADEA viability because the health insurance that older workers purchase with the funds from the ICHRAs would in most cases be more expensive than younger workers. After speaking more with the tri departments, we encouraged them to direct stakeholders with questions about this topic to us, so the EEOC could attempt to provide clarity.

We received a request from one stakeholder that is now the subject of the opinion matter before the commission. The letter raised two scenarios regarding the use of ICHRAs and whether they would violate the ADEA. The first scenario involves an employer using ICHRAs and giving a defined contribution to each employee. The health insurance that older workers purchased with the funds from the ICHRAs were most likely to be more expensive than younger employees. The letters asks if such a defined contribution will violate the ADEA.

As the letter currently before the commission explains, this arrangement does not violate the ADEA because the ICHRA that the employer contributes to is the fringe benefit subject to the ADEA, not the health insurance the employee chooses to purchase that the employer has no control over. Since all employees receive the same amount from the employer in their ICHRAs, the arrangement does not provide less compensation to older workers, and therefore it does not violate the ADEA.

In the second scenario, the stakeholder asked about a situation where an employer wants to provide more in older employees ICHRAs, then younger employees, to account for the fact [03:21:56 inaudible]. As the letter explains, it’s permissible under the ADEA for the employer to provide larger contributions to older employees ICHRAs. The formal letter provides the needed clarity to this complicated area. There's an excellent example of how the EEOCs opinion letter authority can be used to provide effective answers to the public. Thank you for your time, and I look forward to your questions.

Dhillon: Thank you, Mr. Maunz. Now we’ll go to our first round of comments or questions by the commissioners. Vice Chair Sonderling?

Sonderling: I echo what I said in my opening statement. I just want to say that this opinion letter request came from a large association that represents more than 100,000 licensed health insurance agents, brokers, consultants, employee benefits specialists. The association’s members have an important role of servicing in health insurance policies of millions of Americans.

The request stated that solving the issue detailed in the opinion letter is imperative and vital to ensuring that health reimbursement arrangements do not violate federal anti-discrimination law, and I just believe this opinion letter provides important clarifications regarding the interplay of the ADEA and defined contribution, individual coverage health reimbursement arrangements, and other individual coverage health reimbursement arrangements. I am in support of this opinion letter and encourage the public to continue to submit opinion letters like these. Thank you.

Dhillon: Thank you, Vice Chair Sonderling. Commissioner Burrows, do you have any comments or questions?

Burrows: Thank you, Madam Chair. The opinion letter we consider today addresses a complicated and novel issue involving the relatively new individual coverage health reimbursement arrangements that were authorized by rule about a year ago. We know that the rule authorizing this use of the I-C-R-A's or ICHRAs could affect healthcare coverage for millions of working men and women in the midst of a worldwide pandemic that has killed over 350,000 Americans.

We also know that the switch to individual coverage HRA is likely to mean older workers who are being hit particularly hard by the health and economic effects of the pandemic pay more for health coverage, respective to other workers. Given how high the stakes are, I don't see why we are rushing to issue an opinion letter on such a complicated novel issue. I'd like to discuss the commission review process leading today's meeting because in my view process is critical to good governments and sound decision-making.

Historically when the commission has considered new or complex policy issues, draft documents were circulated for a period of at least 30 days followed by a five-day vote. The purpose of the 30-day review period had been to allow commissioners sufficient time to consider the document, consult with experts, propose edits, and ultimately reach consensus on a final draft that reflects insight and expertise of the entire commission. Unfortunately, that process was not followed here.

The draft opinion letter was circulated to the commission for just two weeks, beginning on December 8th of last year, inexplicably followed by an abbreviated two-day voting period, which ended just a few days after the Christmas holiday. Given the number of our significant matters pending before the commission during that same time and including the others on the meeting agenda today, this abbreviated review made it extremely difficult to conduct a thorough review of the letter.

This is particularly problematic given that the opinion letter addresses the subject of health insurance benefits during a pandemic. Employers and employees nationwide had been facing extraordinarily difficult conditions, economic hardship due to COVID-19, and this commission should not rush to approve letters that could impact employee access to health insurance, particularly for older workers without fully considering the issues involved.

As we've heard today, the draft letter considers whether employers offer individual health coverage reimbursement arrangements for the purchase of individual HRAs that charge higher premiums for older workers without violating the age discrimination and employment act. While offering employees a fixed amount of money in a tax preferred account to buy individual health insurance seemed simple enough, it's a new policy, and there are a number of additional rules or exceptions that apply to individual coverage HRAs that complicate any analysis.

For example, individual coverage HRAs allow employers to offer up to three times the benefit amount for older workers, but it’s unclear how much workers will actually need to pay for insurance. Employers may offer either a traditional group health plan or an individual coverage HRA to different classes of employees, such as full-time, part-time salaried, non-salaried workers, seasonal workers, but they may not offer different plans within a class.

Larger employers are required to offer individual contribution HRAs of a certain dollar amount to satisfy the [03:27:09 ACA’s] employer mandate. It's clear that coverage under the individual, excuse me, individual coverage HRAs involve a number of  variables. It's also clear we haven't had time to do so. I was surprised to hear, to really examine those rather, and how they interface with the ADEA. It's concerning that the commission would rush this formal opinion letter because it provides this particular entity with the good faith defense to liability under the ADEA.

We could have easily issued an informal policy document or other rule making. In the years since this has been adopted, the IRS rule, I'm sorry the IRS rule that authorized these programs, and done so in a more reasoned carefully reflected way, rather than a rush to, over the holiday over two weeks. I unfortunately have to oppose this. I would have liked to support it. I find it an interesting and important issue, but on this kind of timeframe, I think it would be irresponsible to do so. I will yield back any time remaining.

Dhillon: Thank you, Commissioner Burrows. Commissioner Samuels.

Samuels: Thank you, Chair Dhillon. This letter in response to a consequential question involving access to healthcare, which of course in the midst of a global pandemic is more critical now than ever. As we all know these arrangements or ICHRA’s are relatively new and in fact only became effective sometime earlier this month. Nonetheless, they're likely to touch the lives of vast numbers of people.

The Departments of Health and Human Services, Treasury and Labor, known as the tri agencies, project that in the next five to 10 years, roughly 800,000 employers will offer these accounts to pay for insurance for more than 11 million employees and family members. At least one industry participant has stated that, we think if market conditions break the right way, it could be much higher.

Now we don't know how many of these 800,000 employers will be subject to the ADEA or how of the effected employees will be age 40 or older, but it's fair to assume that the answers we give to the trade associations questions here could have a deep and lasting impact on a broad swath of the nation's workforce. Questions of whether these plans violate the ADEA is far from theoretical.

As we all know, the cost of health insurance rises as individuals age, and so the very real effect of these ICHRA’s in which often employers make the same contribution to an HRA for each of their employees, is to tell older workers that they either have to pay more out of their own pockets for the same coverage being offered on the market to their younger colleagues, or have to settle for less coverage for the amount the employer is willing to contribute.

What we're discussing today is both immensely complex and of critical, practical significance, not only to workers, but also to employers who want to ensure that they're not violating the law by offering these new plans. Both workers and employers deserve any thoughtful guidance on ADEA standards that we can provide, but we need to do it in a carefully considered and appropriate way. That's why I would like to move to postpone the question before us to a hearing on a date certain, three months from today to a date set by the Chair and to direct the commission during that intervening period to draft and then vote to issue for public comment, a policy guidance addressing the interplay between ICHRAs and the ADEA.

Dhillon: Is there a second?

Burrows: I second.

Dhillon: Commissioner Samuels, do you have anything further to say in support of your motion to postpone?

Samuels: I do. Thank you. I'm doing this for two reasons. One of which actually builds on what Vice Chair Sonderling said about the vehicle that we're using, but first, I really believe that the commission does not yet have sufficient information to enable us to reach a firm conclusion on the questions posed by the requester. Second, I don't believe that a formal opinion letter is the appropriate vehicle for the commission to set policy on this issue.

Let me explain. First, as I said, previously, the issues raised by the trade associations opinion letter request are novel, complex, and consequential. I think in an area of law this complex and far reaching, we need expert stakeholder input to make the best-informed decision. Before I can feel like I am properly discharging my responsibilities as a commissioner, we should hear from the full panoply of stakeholders who will be affected by this [03:33:04 inaudible], older worker advocates, insurance industry experts, benefits specialists, and the Tri-agencies themselves.

I think it bothers when you are responsible to rush an answer out the door without that input. Yet we are again, considering this on a rushed basis at the 11th hour. To concretely illustrate the need for additional input and analysis on the issue, here are just some of the questions I have about the interaction between the ICHRAs and the ADEA. First, how do expert advocacy organizations such as AARP think these vehicles will impact older workers specifically? Has anyone studied the likely impact of ICHRAs on workers over 40? Has any organization compile data on this question?

Second, the draft opinion letter separately analyzed ICHRAs and individually purchased insurance plan and concludes that neither violates the ADEA. That may well be the correct legal conclusion, but why isn't ICHRA, either alone or in conjunction with an associated individually purchased insurance plan, a contributory employee benefit plan subject to the proportionality requirements under the EEOC regulations? In fact, the trade association requesting the opinion seems to assume that it was a contributory employee benefit plan.

Three, draft opinion letter states that where the employer has no control over individual health insurance plans and plays no role in making them available to employee, the individual health insurance plan is not an ADEA covered employee benefit plan. But if employees can only take advantage of an ICHRA if they first buy their own insurance plan, and if the main point of the ICHRA is to provide funds to facilitate the employees purchase of that insurance plan, is it so clear that the employer sponsoring the ICHRA’s is not playing a role in making an individual insurance plan available to employees?

Similarly, I understand there's the safe harbor in the final ICHRA regulations to ensure that individual health insurance coverage purchased with HRA funds will not be treated as part of an employer sponsored group health plan, so long as certain criteria are met. Is that at all relevant to the analysis in the draft? How do ICHRAs intersect with Medicare, and how should the resulting possibilities be analyzed under the ADEA?

We should take the time to consider and get some input on these and any other related questions. I want to make clear this is not in any way to denigrate the work of the Office of Legal Counsel or to cast doubt on their legal analysis. I think they think that we want to ensure that we are issuing the best informed and most cogent analysis possible, and that public input on these questions will enable us to assure ourselves that we're doing just that.

Independent of the merit and the open issues, a formal ADEA opinion letter is simply not the appropriate vehicle for issuing policy on an issue like this one. As we know, section 7(e) of the ADEA empowers us to issue such opinion letters in appropriate circumstances. Once we do issue an official opinion letter the recipient can rely on, is this a defense to ADEA liability? This is a mighty tool at our disposal, and it shouldn't be used lightly or prematurely. In fact, as our most recent announcement about a formal opinion letter process makes clear, we have discretion about whether and how to respond to these requests.

But there are several reasons why I think that this is not the right vehicle in this situation. First, the organization requesting it is a large trade group that represents dozens, if not hundreds of employers. Our regulations make clear that an opinion letter issued to a specific addressee has no effect upon situations other than that of the specific addressee. Therefore, the only entity that would be authorized to rely on this opinion letter would be the trade association, likely acting in its capacity as an employer, when I believe that what they are seeking is guidance that they hope that all of their member employers can rely on.

That kind of reliance suggests that we ought to be doing this through guidance that is put out for public comment, as opposed to an opinion letter specifically addressed only to this single entity. In addition, an opinion letter format requires us to answer specific questions on particular fact patterns, rather than providing more general advice on how legal principles might apply to other permutations as an issue. In light of the significant number of questions that I raised before, and the complexity and novelty of the equal arrangements, it seems shortsighted to approach them in a piecemeal way.

Instead of issuing a formal legal opinion now, I believe we should conduct a public hearing on the panoply of issues that might be raised by these new employee benefit plans, and then we can group our analysis into a commission guidance document that would give us the opportunity for the public to comment, it would give us the term to fully consider the issue, it would ensure that the way in which we issued the  document provides guidance that can be taken into consideration by employers beyond the particular trade association that requested the opinion, and it would give us the assurance that we are doing this in the most robust way and addressing the host of issues that might arise beyond this specific hypothetical posed by this requester.

I, again, am not saying that it will violate the ADEA and it may well be that the legal analysis in this draft opinion letter is correct. I'm just not prepared to render that definitive conclusion without getting input from industry experts and doing this in the way that I think reflects what this document really intends to be, which is general guidance that can be taken into consideration and inform the activities and decisions of employers who use this ICHRAs across the board. I appreciate the opportunity to offer this amendment and I urge the commission to adopt it.

Dhillon: Thank you, Commissioner Samuels. Vice Chair Sonderling, do you have any comments to offer on Mr. Samuel's motion to postpone?

Sonderling: I do. I hear everything you're saying. These are complicated issues and public input is always very valuable, but there's opinion, as you also stated this is a newer program here and it is being implemented and I think we have a duty to put out guidance down. Now, people are out there using this, and they need some guidance from agencies like the EEOC, and we're presented with an opportunity to do so for this specific letter. But that in no way, shape or form precludes other groups from writing in, other agencies, and also, at the Department of Labor opinion letters were used as the first step in other guidance documents.

At the wage and hour division, opinion letters were the first steps [03:42:31 inaudible] in creating updates to the field operation handbooks, or putting out bulletins to our investigators around the country, which expanded on the opinion letters and took on different issues that the specific opinion letter, which you rightfully say is from one specific fact pattern. It gives us an opportunity to at least have some basis in the document and then expand it into guidance for our field and our investigators. I do think it is important to get out this opinion letter now and get that guidance out there as a basis for moving forward.

Dhillon: Thank you. Commissioner Burrows, would you like to speak concerning the motion to postpone that's on the table?

Burrows: Yes. Thank you, Madam Chair. I just have a few remarks. I wholeheartedly agree with everything that Commissioner Samuels has said. I also want it to be clear with respect to the opinion letter here. Again, I, like Commissioner Samuels, am not saying that this is completely invalid, but the process here has made it important, that for me to just object and I think I could not feel more strongly that exactly this process. Roll up our sleeves, get an answer, figure out here from all sides.

Here, we're responding to one letter of an association that really did not lay out a great deal of factual background. While we are certainly experts in the ADEA, I will happily go on record saying I do not support to be an expert in the ACA. To do this over the Christmas holiday, on a rush while we have many other major issues pending seems frankly inappropriate and an application of what I at least see as my role. Frankly I think it is incumbent on us to take that time. We owe it to the public and to hear from more than just one commenter.

Frankly, this is the thing that I would absolutely have loved to be able to work on in a bipartisan basis. I do think that the comments that Commissioner Sonderling has raised have been really insightful on this, and so I don't in any way, want to detract from that, but this is not the process that we should be undertaking. There is a reason why we have not used the formal opinion letter, which creates this, albeit narrow, but a defense to litigation. Because it is such a significant tool.

We have often written opinion letters to provide where it was necessary to move quickly to provide information to the public on an informal basis, so they had the benefit of our reasoning and could even if they wanted to use it in litigation against us or others, but not as a legal defense that is tantamount to carving up the statute. Unlike the wage and hour opinions which really it is focused on compliance, these are different because they are so much broader. There's not a whole lot of specific information about the context.

It's very different from at least the wage and hour opinion letters I've seen, and so I would hesitate to assume that necessarily the same approaches easily grafted on here. I think that taking this time to look at it carefully, to hear from the public, to hold a hearing and to do this as a rule making would be helpful. I would also say that to this issue of the need for speed now.

As I understand it, healthcare policies and these kinds of decisions have to be made on a particular basis because of the way the healthcare plans work in the employment context. Anyone who is taking the step to have an individual coverage HRA has already done that for this plan here, and anyone who hasn't, isn't going to do it for several months in the future. I could be corrected on that, but I don't see the need to rush in this circumstance. With that, I will yield back.

Dhillon: Thank you, Commissioner Burrows. Commissioner Lucas, do you have anything to offer concerning the pending motion to postpone?

Lucas: I do. Unfortunately, I feel like all of the premises that Commissioner Burrows and Commissioner Samuels have, I come out sort of 180 on. While I respect their concerns, I just, I feel like I'm approaching this from a mirror perspective. I think saying this is rushed just really undermines or minimizes the lengthy process that, it's my understanding, went on before it reached us through the hard work of career staff. This was not a partisan letter that was [03:48:05 inaudible]. This is something that was the result of career staff across multiple agencies, caring deeply about something that was affecting their stakeholders, and now this is the logical outgrowth of that. I think that it's just not fair to call it rushed. Although I appreciate the concerns for process, I think that sufficient process has in fact occurred here.

Likewise, with respect to the pandemic, I hear the concern that we need to step carefully with relation to healthcare issues of the pandemic, but likewise, I think that's precisely the reason not to delay  something that's going to facilitate more people potentially getting health care during a pandemic. The pandemic is a reason for me to go full speed ahead and continue this after, again, career staff has been working on this for months and helping clear up something in an area that is a new vehicle.

But regardless of the effect, ultimately, I'm a textualist and I think that concerns about how the ACA works or whether or not there's perhaps, I'm not certain if my points are implying that might be a disparate impact on older workers. For me, the ADEA is all that is before us. It's not the ACA. We are experts in employment law and the law, the regulations, the relevant texts is clear.

Also, I just don't think that we need to step beyond that, and to the extent that Congress ultimately concludes that they are unhappy with the impact of ICHRAs on older workers. They have the tools to remedy that through legislation. That's not our job, our job is to interpret the ADEA. For all of those reasons, I just think that delaying this here is unnecessary and imprudent. Although I do appreciate the spirit in which it's coming from, I don't think it's the right step here.

Dhillon: Thank you, Commissioner Lucas. I don't have anything to add, so we'll move to a vote on the pending motion to postpone. Vice Chair Sonderling, how do you vote?

Sonderling: I vote no.

Dhillon:C ommissioner burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels?

Samuels: I vote yes.

Dhillon: Commissioner Lucas?

Lucas: I vote no.

Dhillon: And I vote no. The motion fails. We'll take a break right now in order to give our cart transcriber a break. We will take a 10-minute break and we will resume at 5.10 Eastern time. Thank you.

Thank you. We are resuming the meeting of the Equal Employment Opportunity Commission. We are considering a formal opinion letter concerning individual coverage health reimbursement arrangements under the ADEA. We are in our comments and questions round. I will now turn the floor over to Commissioner Lucas, if she has any comments or questions.

Lucas: I rest in the statements that I made before, so I don't have anything further to say. I yield my time. Thank you.

Dhillon: Thank you. I will offer some brief comments. I fully support the commission's approval of this opinion letter. This letter will help alleviate confusion and uncertainty among employers, employees, and the insurance industry on the question of whether employers use of ICHRAs to satisfy their health insurance obligations would violate the Age Discrimination and Employment Act.

When issuing the final rules in 2019, the tri departments noted the rules provided greater flexibility to lawyers, especially small businesses, and greater choice on health insurance coverage to employees. The departments estimate that once employers adjusted to the new rules, roughly 800,000 employers would use ICHRAs to provide health insurance to an estimated 11 million employees.

Concern over potential ADEA liability could stop employers from fully considering the potential benefits of using ICHRAs as part of their benefits packages. By providing more certainty on how the ADEA affects the use of ICHRAs, the commission prevents this issue from undermining the tri departments important goals. The letter being considered here today is in my mind a prime example of how the commission can provide [04:01:04 inaudible] certainty to regulated entities on complying with laws the EEOC enforce.

Robust compliance assistance has been a priority of the commission during my time as Chair, and this letter is just one way that the commission can effectively express its views to stakeholders on how to comply with the law. The letter is a clear application of the ADEA and the commission's regulations to a new employee benefit arrangement. As the letter explains an employer providing the same contribution to each employee’s ICHRA does not violate the ADEA because the ICHRA itself, not the health insurance an employee chooses to purchase, is the fringe benefit that is subject to ADEA and the equal contributions to all employees do not result in lesser compensation to older workers in violation of the ADEA.

This letter is a product of hard work and careful and thoughtful analysis by career members in the Office of Legal Counsel. They have worked closely with their peers at the tri departments, and indeed their peers have reviewed the letter that the commission is considering. I think that the inter-agency cooperation that's been exhibited in the development of this letter is exemplary. In particular, I would again like to thank Ray  [04:02:21 inaudible] and Aaron [04:02:23 inaudible] for their exceptional work on this issue. We'll now turn to a second round of comments and questions if anyone has any. Vice Chair Sonderling, do you have anything further to add?

Sonderling: I do not.

Dhillon: Commissioner Burrows, do you have anything further to add?

Burrows: Thank you, Madam Chair. I would say the following. While this commission is certainly free to issue opinion letters that are properly requested by interested parties we also have a duty to carefully consider and discuss the implications of our proposed policy statements. We simply have not done so in this instance. While I certainly respect Commissioner Lucas’ comments about the work undertaken by agency staff as well as their efforts, and I am very appreciative of those, I have to point out that this request for an opinion letter is dated October 29th of 2020.

The commission only began consideration of the letter approximately one month later on December 8, 2020. It was about a month and that is simply not sufficient time to conduct a thorough inter-agency review and to consider it, in my opinion, given what's at stake, and that there's nothing to denigrate what the extraordinary efforts that our staff has been through, and as I mentioned at the outset, under very difficult circumstances throughout the holidays, without a single break, as far as I can tell.

But it's important to note that letting employers, or in this case an individual entity, offer individual coverage HRA for employees to purchase health insurance on exchange or directly from insurer is actually a significant change in the healthcare industry. A recent survey of 397 large US employers found that 15% of those polled were planning to offer or were considering offering ICHRAs to at least some of their employees, and almost a quarter, 22%, of wholesale and retail employers were planning to offer or were considering offering ICHRAs in 2020 or later.

As my colleague, Commissioner Samuels noted, and as the Chair did as well, the tri departments estimated that roughly 800,000 firms will offer individual coverage HRAs, and an estimated 11.4 million people will be covered by them in 2029. These numbers underscore how important it is for the commission to properly consider whether use of individual coverage HRAs could result in ADEA violations. Given how central ACA issues are likely to be in the incoming administration.

It also, frankly, gives me some pause that we are voting on the very eve of the inauguration for a new administration that could very well change the rules regarding individual coverage HRAs. If that happens the commission's opinion letter would provide completely obsolete  information and a new commission vote would be required to withdraw the letter. Unfortunately, I cannot support issuance of an opinion letter under these circumstances. The commission simply has not been given sufficient time to review the complex interplay between individual coverage HRAs and the ADEA.

The fact that our able career staff have done their best on this issue is not in any way substitute for each of us executing our sworn duty to examine it and to apply our best judgment before we take this vote. In light of the pandemic, today more than ever, the commission must carefully consider policy proposals that could impact employee benefits for older workers. Such careful consideration and discussion simply cannot be accomplished in two weeks, and it certainly cannot be resolved in a single public meeting. For these reasons, I urge my colleagues to oppose this proposal.

Dhillon: Thank you, Commissioner Burrows. Commissioner Samuels, do you want to offer additional comments?

Samuels: I do. I know that we all seek to make sound policy that maximizes equal opportunity for older workers. We all oppose age discrimination. We shouldn't [04:07:02 inaudible] resolve this substantive policy issue along partisan lines. I would have loved to have found common ground on it, particularly now in the midst of a pandemic and the ongoing economic downturn, where far too many workers, including countless older workers are suffering.

I think that we could have reached agreement on it in the context of creating the advice that I think we want to convey, which is generalized guidance for the potential 800,000 employers who are potentially going to be offering these new employee benefits, but because my motion was not accepted and it looks like the commission will approve this letter in its current form, I think it's important for the record to make clear what this letter does not do.

It does not purport to address any questions beyond the hypothetical, specifically addressed and authored in the opinion letter. It only applies to the addressee, specifically, this particular trade association. It does not purport to provide a [04:08:40 defense] to liability to anyone other than the requester, acting as an employer of its own workforce, and does not set for general standards that can be applied to other equal issues.

It does not state that every ICHRA arrangement or every possible permutation involving an employer's creation of ICHRAs will comply with the ADEA, and it also does not opine on whether the hypothetical ICHRA arrangements raised by the requester will violate any laws other than the ADEA, or whether those hypotheticals themselves are even permissible under the tri agency regulations.

For the reasons that I previously stated, I feel compelled to vote against this letter at this point in time and in this form, but I do thank the staff of the Office of Legal Counsel for all of their diligent work on this, and I yield back the time I have remaining.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you have anything further to add?

Lucas: For the reasons that I previously stated, I continue to support providing this guidance via a formal opinion letter. That said, to Commissioner Samuels’ point to the extent that she thinks, and I think Commissioner Burrows also thinks this, that more could be done, or we could provide more clarity. Like Vice Chair Sonderling said, opinion letters are only the first step.

We can build on this effort, and if we think that there's a real chance of a bipartisan meeting of the minds in the future, then let's do that. I'm not going to formally propose anything at this time, but I think that we should all consider and talk amongst ourselves about whether or not we want to provide a further guidance in other vehicles that we have before us. I welcome continued bipartisan discussion of that, and I think that we should see this as a starting point, not the end of this discussion.

Dhillon: Thank you, Commissioner Lucas. I don't have anything further to add, so we'll move to the vote. I move to adopt the formal opinion letter concerning individual coverage health reimbursement arrangements under the ADEA as presented. Is there a second?

Sonderling: I second.

Dhillon: We’ll do this by roll call for clarity of the record. Vice Chair Sonderling, how do you vote?

Sonderling: I vote in favor.

Dhillon: Commissioner Burrows?

Burrows: I regrettably have to vote against this.

Dhillon: Commissioner Samuels?

Samuels: I vote no.

Dhillon: Commissioner Lucas?

Lucas: I vote yes.

Dhillon: I vote yes, so the opinion letter is approved as presented to the commission. We'll now move to the third item on our agenda, which is consideration of a proposed final rule amending the commission's official time regulation for the federal sector. Our legal counsel, Drew Maunz will present on this agenda item.

Andrew: Thank you, Chair. Now before the commission is this final rule adjusting the commission's federal sector official time regulation found under 29 CFR section 1614.605. The final rule makes an important adjustment that aims at [04:12:23 inaudible] source of official time for union officials who are federal employees.

Official time is a term used to refer to times when federal employees can get paid their agency salaries for doing non-agency work. The EEOCs regulation provide the source of official time for federal employees to pursue their own EEO claims and to serve as representatives for other employees to pursue EEO claims. The EEOCs regulation is largely a holdover from a regulation that existed under the Civil Service Commission when it oversaw the federal workforce as EEO was.

The Civil Service Commission's regulation predates Congress passing the Federal Service Labor Management Relations Statute, or FSLMRS, which governs unions and collective bargaining in the federal government. One provision of the FSLMRS gave federal employees who work as officials for federal unions the right to official time under certain scenarios, most notably when agreed on during collective bargaining. The EEOCs regulation has never accounted for the FSLMRS serving as a source for official time.

On December 11, 2019, the commission issued a notice of proposed rulemaking proposing to amend its federal sector official time regulation to eliminate interference with the FSLMRS and make it clear that the FSLMRS should serve as union officials’ source for official time. After the 60-day comment period ended, the commission opened up the process for another 60-day comment period, due to the interest in the issue. Now the commission is ready to move forward with a final rule that is identical to what it proposed in December 2019.

The commission received thousands of comments through a letter writing campaign from individuals who opposed the rule. Several organizations and unions wrote an opposition to the rule change as well. On the other hand, a few agencies commented in support of the rule. The final rule’s preamble goes into great detail on why the comments in opposition did not convincingly demonstrate why the agency should abandon this rule change.

The commission explains in the preamble why each of the policy and legal reasons commenters raised in opposition to [04:14:27 inaudible] not justify abandoning. However, the agencies that commented in support demonstrate the real-world benefits of this rule change would have, which included bringing clarity to the collective bargaining process and allowing the agencies to better serve the public by bringing more certainty to its workforce planning activities.

Overall, this final rule will more faithfully follow the law as written than the commission's previous regulation and will extract the commission from the collective bargaining process and the FSLMRS, which it has necessarily inserted itself into. This change also has the added benefit of increasing government agencies ability to fulfil their missions by bringing more clarity to what employees will be available to fulfil their agency duties. Thank you for your time, and I look forward to your questions.

Dhillon: Thank you. We'll now move to our first round of comments and questions and leading us off will be Vice Chair Sonderling.

Sonderling: Yes. Again, as I stated in my opening statement, I believe this clarification will provide union and agencies with greater clarity when negotiating official time during collective bargaining and that the final rule will allow agencies to make sure that they have enough workers available to serve public and their respective missions. I do just want to know that comments from other federal agencies best capture the final rules importance.

For instance, the Department of Veterans Affairs stated the commission’s existing official time regulations make it difficult for the VA to determine the aggregate amount of time it can expect its staff to be performing agency business. The VA clarify that the commission’s proposed rule will make it easier for VA to manage its workforce and provide needed care to veterans. For those reasons, I am supportive of this rule.

Dhillon: Thank you. Commissioner Burrows, do have any comments or questions?

Burrows: Thank you. I am deeply disappointed that this commission is considering the proposed rule to severely reduce the amount of official time granted union members to represent federal employees in unlawful discrimination complaint processes. As I said at the outset, this change is a blatant attack on unions and workers’ rights, denying victims of discrimination the right to choose their own representatives.

EEOCs own regulations have long guaranteed federal employees who file employment discrimination complaints the right to be accompanied represented and advised by representatives of their choice. Experienced union assistance is particularly helpful in the federal sector where federal employees have just 45 days to contact an EEO counselor if they have suffered discrimination.

This change to our official time guidelines is entirely unnecessary and substantially departs from decades of precedent. It will harm the most vulnerable workers, including victims of sexual harassment and retaliation, and create a chilling effect on the complaint process. It's safe to say that the public overwhelmingly agrees with this assessment. During two separate notice and comment periods that commission received thousands of public comments opposing the rule change. I have never seen that level of opposition to anything this commission proposed.

Letters urging the commission not to amend its regulations were submitted by members of the Senate Committee on Health Education Labor and Pensions, 185 members of the House of Representatives, four labor unions with over a thousand signatories, numerous civil rights groups and the congressional opposition to the rule includes vehement objections from Chairman Bobby Scott, Chairman of the House Committee on Education and Labor and Representative Carolyn Maloney, Chairwoman of the House Committee on Oversight and Reform. These strong concerns, particularly from the congressional committees of oversight should give us pause.

In the past week alone, we've received more than a thousand union member letters urging us not to take this ill-conceived step. EEOC has given no recent analysis, no survey results, no other data to justify effectively removing union representatives as a resource for federal employees opposing discrimination in the workplace.

The concept of a reasonable amount of official time provided to representatives of the EEO complaint process dates back to the Civil Service Commission, well before the Federal Service Labor Management Relationship Statutes was enacted in 78, but Congress was fully aware, therefore that a separate category of official time for EEO matters existed when it addressed official time for union matters in the FSLMRS.

No evidence has been given that Congress intended for that to be the sole source of official time for union reps assisting victims of workplace discrimination. The final rule argues that the commission has not expressly addressed the availability of reasonable official time to union officials or how the commission's official time regulation for EEO proceedings interacts with the FSLMRS.

However, EEOC issued regulations addressing official time in the federal sector after issuance of FSLMRS. It was fully aware, therefore that the civil service commission provided for official time to union representatives prior to enactment of that statute, and that it addressed, that the FSLMRS addressed federal official time in the collective bargaining context when it elected not to modify this official time rule.

If approved this ill-conceived rule will have the biggest negative impact on vulnerable workers who may not have resources to hire an attorney who fear retaliation, for participating in EEO activity and who are the most likely to be subject to harassment. Harassment made on all bases is consistently one of the most alleged claims in federal EEO complaints and reducing access to union representation, particularly in the “Me Too” era will only harm federal workers and have a chilling effect on complaint filing.

Finally, I'm very concerned that the rule could be read to require agencies and employees to determine how much official time may be allotted for union representation during the collective bargaining process effective 30 days after publication of the rule. It's unfair to implement this rule when most agencies are already working under an existing collective bargaining agreement that was negotiated in good faith before this changed. For that reason, I propose that. One, to clarify that union representation well, I'll explain it during the debate on the rule, so I'm offering a Burrows amendment one.

Dhillon: Is there a second?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to offer a comments support of your proposed amendment?

Burrows: Yes. Thank you. I would like to propose striking this amendment for three reasons and I think…

Dhillon: Commissioner Burrows, we can't hear you.

Burrows: My apologies. It appears that I have hit mute when I should not have to mute. I’m sorry.

Dhillon: Please proceed. Okay.

Burrows: All right. Thank you very much. With respect to this, I think it's important just to clarify that we should allow a reasonable amount of time for those union and agency representatives to come to the bargaining conclusions that they need to in this era rather than changing the landscape after they've already reached a conclusion.

There are currently bargaining agreements already in effect. This amendment would clarify that these, that the union and agency representatives can have 30 days from the effective date of the rule, if they wish to reopen or approve collective bargaining agreements regarding the official time issue, rather than having this upend what are carefully debated and negotiated expectations by both parties.

That is the reason for the rule. It's a reasonable modification, which I believe will allow us to basically very carefully draft the negative impact here if as I fear this isn't ultimately adopted.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you have anything, any comments to offer concerning the proposed amendment?

Sonderling: I do not.

Dhillon: Commissioner Samuels?

Samuels: Thank you, Chair Dhillon. I support this amendment. It makes little sense and is fundamentally unfair to force this drastic policy change on unions, union officials, EEO complainants, and agencies themselves unless agencies and unions enter into collective bargaining with a full understanding of what needs to be bargained. As a result, I think this amendment will allow all interested parties the time to adjust to the changed landscape and proceed accordingly.

It will make clear that the changes made by this regulation apply only once a new collective bargaining agreement or a modified collective bargaining agreement, it can be entered with full understanding of the new landscape is in effect after the rule becomes effective 30 days from now, if we vote to adopt it. I think this is a matter of fundamental fairness and ensuring that parties can bargain understanding what the subjects of the bargaining must be. I support this amendment.

Dhillon: Thank you. Commissioner Lucas?

Lucas: I have no comment on the amendment. Thank you.

Dhillon: I don’t as well, so we'll move to a roll call vote on the proposed amendment. Vice Chair Sonderling?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels?

Samuels: Yes.

Dhillon: Commissioner Lucas?

Lucas: I vote no.

Dhillon: I vote no, so the amendment fails. We will now move to Commissioner Samuels. Commissioner Samuels, do you have any comments or questions to offer?

Samuels: I do, but I want to confirm that Commissioner Burrows has nothing else.

Burrows: Thank you. I do not.

Samuels: Thank you Chair Dhillon. I strongly support good government, including efforts to safeguard taxpayer funds and promote efficiency administration in labor management relations. This regulatory change purports to serve those goals. However, as I've reviewed the NPRM, the public comments and the draft final rule, I've become convinced that this is a policy solution in search of a problem. This proposal singles out one category, and only one category of federal employees, union officials who exercise their statutorily protected right to serve as union officials, to disqualify them from receiving EEO official time. This will restrict federal sector complainant choice and hamper federal sector EEO enforcement.

The proposal does undermine Title VII’s and EEOCs clear mandate requiring all federal agencies to create a maintain model EEO programs and to eradicate discrimination in the federal government. The statutes that are in force and our own federal sector regulations charge each federal agency with becoming a model employer. We expect agencies to treat equal employment opportunity as central to everything they do. It's not incidental or an inconvenience or a nuisance. It is mission critical, and allowing EEO official time for claimants and their representatives is essential to serve that purpose.

Unfortunately, the rule before us today, undermines rather than promotes these goals. Now, as we know, current regulations provide that in the federal sector, any EEO complainant and any representative “of a complainants choice,” can receive a “reasonable” amount of official time to prepare part 1614 complaints and attend related meetings. This is informally called EEO official time. It makes great sense to allow federal sector complainants the freedom to choose their representatives and to provide all representatives with reasonable official time for these purposes.

For complainants, it means they can have a trusted, reliable advocate for their interests. A choice that can make them more comfortable participating in the sometimes-intimidating 1614 process, and that in turn is critical to identifying and eliminating workplace discrimination. Many complainants choose union officials to represent them. Such officials often are ideally situated to assist federal sector employees in preparing and presenting their cases.

For example, union stewards know labor management issues. They understand the procedural and substantive complexities complainants must navigate. They can provide complainants with candid advice on the prospects for success. They can facilitate settlements of disputes, and they can help adjudicators, like agencies in EEOC in resolving these cases. Our current rule has been in effect for most of the last 50 years, including since enactment of the FSLMRS. In fact, the EEOC has changed other parts of the 1614 regulations to reincorporate requirements of the FSLMRS. And at the same time left out official time regulations in place.

There's no law that requires this policy or regulatory change, and to my knowledge, the commission has never before felt compelled to revisit and disrupt this decades old policy. This is a policy, not a legal decision. A policy choice to prohibit one and only one group of employees, union officials, from receiving any EEO official time. It seems that this rule is based on the same rationale that underlies Executive Order 13837, an executive order that expressively seeks to curtail use of union official time all together. In other words, the very official time that under this rule would not have to be allocated between labor management disputes and EEO representation.

Viewed holistically, the administration's policy goals are plain by any EEO official time for union officials, force unions to bargain for any official time [04:31:10 inaudible], and at the same time restrict agency management from agreeing to collective bargaining agreements that provides more ample union official time to ensure that union officials can discharge all of these responsibilities.

The upshot of this policy will be to strongly disincentivize union officials from agreeing to serve as 1614 representatives. As a practical matter, this will deprive complainants, have the ability to choose knowledgeable, effective advocates who can help to crystallize issues for adjudicators and facilitate effective EEO enforcement. Complainants will have fewer choices as they look for skilled and knowledgeable individuals, and adjudicators will have less assistance in ensuring that these claims are efficiently and appropriately handled.

For these and other reasons, the commission received thousands of comments in opposition to the proposed rule. Indeed, the opposition continues this work today. The commission received more than 1100 additional comments yesterday, urging us to reject this proposal thereby making clear how damaging this is. The volume of public comments alone is of course not just positive, but such significant lopsided opposition to the rule should give us great pause as to the wisdom of this regulation, and yet the commission is not changing anything for the NPRM in response to these comments.

I strongly oppose this rule. I believe the policy reasons for asserting for it are wholly inadequate to justify this approach and actually [04:33:12 inaudible] by the comments, including significant ones filed by the American Federation of Government Employees, and I urge the commission to reject this initiative.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you have any questions or comments?

Lucas: Thank you, Chair Dhillon. As I said in my opening, I think that we've heard from multiple federal agencies that this is going to provide predictability and stability for them in the management of the federal workforce, and I think that's really important. I respectfully disagree with my Democrat colleagues that this is going to prevent union officials from being able to represent other federal employees. That's simply not the case. This will simply require them to use official time as negotiated through the collective bargaining process.

To the extent that they see that this is something that they very strongly wish to be able to have as expressed, as it seems from the common campaign that we received they have the full power to bargain for that. I don't view this as eliminating their ability. They're still well within their means to achieve this through collective bargaining. Collective bargaining achieves all sorts of ends, so that's the point of it. I think that while that may require some effort, that cost, that definitive cost is balanced out by the benefits of certainty for workforce management and efficiency.

That ultimately is going to allow agencies, as I said in my opening, to better serve the public and fulfill their respective missions. Respectfully, I defer to the federal agencies who commented here on the value of this for their management, their workforce, not necessarily simply the volume, of near identical comments that we've received from individual employee commentors. I yield the rest of my time.

Dhillon: Thank you, Commissioner Lucas. I'll offer some brief remarks with respect to the final rule. The commission has been given the important role of administering the EEO laws in the federal government. In fulfilling its role overseeing the federal government's EEO compliance, it's important that the EEOC not unnecessarily infringe on another statute or agency's authority. The regulation that the commission is considering amending today provides for official time for current federal employees in the course of EEO proceedings.

Official time is the term referring to federal employees being paid their full government salary while spending time pursuing their own EEO claims or serving as another employees’ representative. The regulation was originally enacted before Congress provided for official time for federal employees serving as union officials through a carefully crafted statutory scheme, the Federal Service Labor Management Relations Statute.

The EEOC has never amended the regulation to account for the separate source of official time for federal employees. The final rule that the commission is considering today, ends the EEOCs unnecessary entanglement with the FSLMRS by eliminating the EEOCs regulation as a duplicate source of official time for union officials. For too long, the EEOCs regulations have overlapped the FSLMRS as a source of official time for union officials, seemingly in contravention of Congress's design.

This duplicate source has negatively impacted agency's management of their workforce and brought unnecessary uncertainty to the bargaining process between agencies and unions. Federal agencies who have commented on this rule made it clear that this change will improve their agency's operation and allow agencies to better serve the public. Because the EEOCs current regulation serves as a duplicate source for official time, agencies explained it made it difficult for them to plan the allocation of their workforce. Official time for union officials that was acquired through bargaining was often undercut by the same union officials timing official time through EEOC regulations. This made it difficult for agencies to plan work schedules and fulfill their missions.

The commission's proposed change elicits spirited opposition from organizations and individuals who do not agree. The commission received comments on this proposal during the course of over 120 days comment, and more recently. The majority of these comments were from individuals who are against the change and made the comments through a coordinated letter writing campaign. I appreciate these commenters making their voices heard, and I carefully considered the points that the commentors made in opposition to the rule.

As the final rule preamble explains the comments in opposition did not convincingly explain why the commission's amendment to its official time regulations are not justified by the legal and policy considerations that the commission articulated in the notice of proposed rulemaking. I support the final rule that the commission is considering today because it would end the unnecessary duplication that has existed with respect to union officials receiving official time, allow agencies to better serve the public and fully align the commission’s regulations with the statutory regime the Congress has put in place to manage labor relations in the federal government. We'll now turn to our second round of comments and questions. I’ll start with Vice Chair Sonderling. Do you have anything additional to add?

Sonderling: No.

Dhillon: Commissioner Burrows?

Burrows: Thank you, Madam Chair. As I noted earlier, and it saddens me to say this, it's very difficult to see this final as anything but a partisan political effort to undermine the union and weaken assistance for victims of discrimination. Frankly, civil rights enforcement should not be a part of the political game. The preamble states that changes are needed because agencies will be able more accurately to plan and forecast staffing needs based on the official time arrangement and parameters negotiated during collective bargaining.

No evidence has been provided establishing that agencies have any difficulty forecasting staffing needs under the current system, which happen when the regulations have been in effect for decades. Moreover, agencies would presumably have similar staffing concerns for non-union employees to request official time for EEO related activities. Although I do not believe agencies have significant staffing concerns regarding official time, this inherent contradiction in the rule can't be ignored.

If the issue is the need to clarify what is meant by reasonable time, then we should clarify, not completely throw the baby out with the bath water. The rule also may create new administrative burdens because agencies will now be tasked with calculating the difference between union official time and the official time spent by other federal  employees who may serve as non-union reps.

I have additional concern with a vote to prove this today. It is particularly inappropriate to approve such a highly controversial rule impacting federal employees across the government just two short weeks before a new administration begins. Each administration has its own priorities, and this will seek to institute a fundamental shift in internal executive branch personnel matters on the eve of the new administration.

Finally, I'm concerned that the addition of the new role was added to this text and circulated commission just one day ago. For this reason, I would like to propose an amendment now, and that amendment is, I believe was circulated Burrows amendment two, but it reads, it would strike on page 34, the following sentence on the end of the second full paragraph. This is, “This is not a major rule of the term as defined in 5 USC 1804(2).”

Dhillon: Is there second to the proposed amendment?

Samuels: This is Commissioner Samuels. I second.

Dhillon: Commissioner Burrows, do you wish to speak in further support of your proposed amendment?

Burrows: Yes, I am proposing to strike this particular amendment for the same reasons that I proposed striking a very similar amendment earlier on the ill-conceived conciliation document. The commission isn't authorized to determine whether this is a major rule for purposes of the Congressional Review Act. The Act just says that the Administrator of the Office of Information and Regulatory Affairs or the Office of Management and Budget can make such a determination, that’s straight from the statute.

Any determination this committee make is simply without any legal course. And it is highly concerning to me that it was slipped in just 24 hours before today's meeting. Only OMB can make the determination, but even if that weren't the case, this new language would require us to take an actual look and figure out as a legal matter, whether or not we believe that to be true.          None of us on the commission have had an opportunity to do that given the number of other very important matters that are before the commission at the time, in the roughly one day that we've had to consider that question.

Finally, given the lack of explanation, even during our debate earlier today, and the fact that this suddenly appeared after we all learned the results of the Georgia Senate election, leads me to conclude that the only reason it's there is to shield this from scrutiny by Congress under the Congressional Review Act. That obviously is futile and certainly not something I could support. There is certainly no legal reasons to suddenly add this designation. As with the conciliation rule, we've had no different comments, we've had [04:44:03 review]. This language didn't appear until yesterday. It didn't appear when OMB approved it, which is actually the right authority to put something like this in. Under these circumstances, I strongly oppose including this language.

Dhillon: Thank you, Commissioner Burrows. Vice Chair Sonderling, do you wish to speak to Commissioner Burrows’ proposed amendment?

Sonderling: I don't have any comments.

Dhillon: Commissioner Samuels?

Samuels: I do. I support this amendment for the persuasive reasons that Commissioner Burrows has laid out. This change to the rule was inserted at the proverbial 11th hour, without any explanation and with no opportunity for commissioners to understand the rationale or the legal underpinnings for this. This is a way to sandbag commissioners in trying to evaluate how they should vote on this rule.

I am not an expert in the Congressional Review Act and of course did not have the opportunity to become an expert on it overnight, but I do understand that it's not the province of an agency to decide whether the rule is major for Congressional Review Act purposes. I would simply note that with a new Congress and the new administration, there will undoubtedly be people who are interested in revisiting this rule, if in fact it is adopted by us today and that the commissions inclusion of this language will have no effect on the legal authority of any government  body to do so.

Given my concerns about this rule and how unnecessary, detrimental, arbitrary, and capricious it is, I will be looking for ways to limit its detrimental impact if we pass it today and into the future. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you have any comments to add?

Lucas: I don't have any comments. No. Thank you.

Dhillon: I do not either. We'll move to a vote on proposed amendment number two. Vice Chair Sonderling, how do you vote?

Sonderling: I vote no.

Dhillon: Commissioner Burrows?

Burrows: I vote yes.

Dhillon: Commissioner Samuels?

Samuels: I vote yes.

Dhillon: Commissioner Lucas?

Lucas: I vote no.

Dhillon: I vote no. The amendment fails. Commissioner Burrows, do you have any further amendments?

Burrows: I would like to conclude my remarks. I don't have additional amendments, but I want to say that limiting rather than expanding protections for federal workers, especially in this pandemic, sends a message that is opposite the mission of this commission, and it frankly diminishes the government's role as a model employer, maintaining decades of precedent that affords a reasonable amount of official time for union representatives to help federal employees who filed discrimination, complaints promotes equal opportunity, and it makes the workplace safer for all employees.

It also makes for much more streamlined and rational [04:47:37 inaudible] and administrative judges as they review these cases. It is certainly not as helpful, I would guess as having an attorney, but having someone who's familiar with the process, particularly a union representative can help it go more smoothly, more quickly, and that is of use to our administrative judges, particularly given their enormous caseload.

I would say further that, as I said at the beginning, this agency should not be undertaking these kinds of proposals. This agency was born of an urgent civil rights crisis and created in direct response to requests for justice made at the historic 1963 match on Washington for jobs and freedom. That landmark act which created this August body was packed with broad bipartisan majorities of both chambers of Congress. We have seen what partisan overreach looks like in the ugliest possible way yesterday at the US Capitol.

I do not understand why would we be doing this now, particularly given that, as Commissioner Samuels points out, its days are numbered. Yet we've had our dedicated career staff working every day, Christmas through New Years’ and beyond, to create these proposals, to finalize them, to exhaust everyone, but it's not going to stick. I guess I would say that there are in the days when they created and considered and debated the ‘64 Act that created our agency. There was a right and a wrong side of history.

This proposal is on the wrong side of history. Those who at that time used procedural methods to create a filibuster of that August bill are remembered for that. Unfortunately, I think supporting this proposal will be equally so regarded. I just am very sad that we find ourselves doing this now. It's absolutely beyond me. With that, I will yield back

Dhillon: Commissioner Samuels?

Samuels: Thank you. I would like to endorse Commissioner Burrows’ passionate sentiments, and reflections on history. It is a deeply unfortunate development that we are concluding this meeting with a vote on a rule that I think both Commissioner Burrows and I agree is not legally required, not practically necessary, would upend more than four decades of practice and experience, is opposed by the overwhelming majority of individuals who submitted comments to us on the matter, is opposed by EEOCs own local union and singles out only union officials for adverse treatment.

This rule will undoubtedly discourage union officials from serving as EEO representatives, even in their personal non-union capacity. It will restrict complainant’s choice, and it will mean that the federal sector EEO process will be deprived of skilled representatives who can help to sharpen and streamline agency consideration of EEO complaints. It will upset a system in which unions, their official agency management, EEO complainant’s, and EEO offices have all adjusted to and operated within the current rules on official time.

It will undermine the federal government's statutorily mandated responsibility to be a model employer and to ensure that its employees are provided equal employment opportunity, and it is all done to advance the current administration's anti-union posture. This is, as I said before, a solution in search of a problem and an affirmatively harmful policy change. I therefore will vote to disapprove this approval and strongly urge my colleagues to reject this amendment, this draft final rule in its entirety, and to uphold the reputation and the role of the EEOC to promote and not undermine equal opportunity in the federal workforce and beyond. Thank you.

Dhillon: Thank you, Commissioner Samuels. Commissioner Lucas, do you have anything further to add?

Lucas:  Yes, just briefly. I respect my Democrat colleague’s strong opposition to this rule. I appreciate that there are strong feelings and I appreciate that, in general, tensions may be high after the disgraceful events that happened at the Capitol yesterday. That being said, I think that there are ways to express strong disagreement without calling your colleagues on the wrong side of history. I've generally been heartened by lots of efforts and calls for bipartisanship, both behind the scenes and on this call, but I don't think that the more recent statements are a helpful facilitation of those calls.

I hope that in the future we can trust each other to sometimes arrive at radically different viewpoints without reaching that kind of discussion. I do think that reasonable minds can disagree about this policy priority and this rule, and I know that in the future we will probably disagree sharply and on other topics, but I hope that we can keep things cordial. I do sincerely wish to continue to work collaboratively with you all, even when we ultimately disagree. That's all I have to say on that front.

Dhillon: Thank you, Commissioner Lucas. I have nothing further to add, so we will move to the vote. I move to adopt the final rule amending the commission's official time regulation for the federal sector as presented. Is there a second?

Sonderling: I second the rule.

Dhillon: We’ll go to a roll call vote for purposes of clarity of the record. Vice Chair Sonderling, how do you vote?

Sonderling: I vote in favor.

Dhillon: Commissioner Burrows?

Burrows: I vote no.

Dhillon: Commissioner Samuels?

Samuels: I oppose.

Dhillon: Commissioner Lucas?

Lucas:  I vote in favor of the rule.

Dhillon: I vote in favor of the rule, so the rule is adopted. Thanks to my fellow commissioners, to the EEOC staff who made this meeting possible and to the technical staff who have worked on this call and this meeting. With that, we are adjourned.