77 | EEOC-INITIATED LITIGATION: 2026 EDITION ©2026 Seyfarth Shaw LLP retaining flexibility over the conciliation process would “more effectively accomplish its goal of preventing and remediating employment discrimination.” 121 The notice also acknowledged that the EEOC’s conciliation efforts had not been terribly successful at resolving charges.122 In an effort to improve the effectiveness of the conciliation process, the notice included proposed amendments meant to establish “basic information disclosure requirements that will make it more likely that employers have a better understanding of the EEOC’s position in conciliation and, thus, make it more likely that the conciliation will be successful.” 123 The changes proposed by the EEOC were seen by many as a welcome attempt to address this issue, and the Republican-led Commission adopted the Final Rule in January 2021, just before the new Biden administration was sworn in. The new rule went into effect on February 16, 2021, but while it was lauded by employers, it did not survive long. Congress exercised its authority under the Congressional Review Act to overturn executive branch regulations within 60 legislative days of when they were issued.124 Before June 2021 ended, both125 houses126 of Congress passed resolutions to rescind the rule, which the White House signed into law.127 The detailed conciliation requirements adopted during the Trump administration were in effect only briefly, but they reflected an effort to increase transparency and structure in the process—an approach that could be reintroduced under Chair Lucas. In the meantime, while the EEOC has not reinstated those formal requirements, we are seeing more announcements of agreements reached through conciliation, suggesting that the agency may be informally emphasizing resolution efforts even without the regulatory mandate. Short of any explicit requirements for the EEOC to follow, employers must be diligent and sometimes creative about drawing the EEOC into meaningful and productive settlement discussions. For employers, a longer conciliation process generally is better, as it suggests that the EEOC is more engaged in a give‑and‑take process about how to resolve the dispute without resorting to litigation. In contrast, a short conciliation suggests that one or both parties are unwilling to bend their positions to negotiate a mutually acceptable outcome. Conciliation agreements that the EEOC accepts commonly include requirements such as posting a notice of non-discrimination; reviewing and revising policies; providing training; and submitting reports to the EEOC for a period of time. Employers can negotiate the specific terms, though, such as the content of any notice, or where it is posted; which employees must complete the training; the contents and frequency of submission of any reports; or the duration of the agreement. The EEOC may also ask the employer whether they will agree to make the settlement public via a press release. Experienced counsel may be able to save an employer significant sums of money not just through the economic relief, but by understanding how to agree on points important to the EEOC while ensuring that programmatic relief does not needlessly burden the employer. Timing and Statistics in Conciliation. The EEOC does not report detailed statistics about its process and timelines for moving an investigation from determination, to conciliation, to litigation. However, following the Supreme Court’s Mach Mining decision, the EEOC began to include information in its complaints about how the process played out in each particular case. Seyfarth collects and analyzes that information annually, and as a result we are able to describe how long it takes for the EEOC to move from step to step, as well as the relative pace of the EEOC District Offices. 121 Update of Commission’s Conciliation Procedures, 85 Fed. Reg. 64079 (proposed Oct. 9, 2020) (to be codified at 29 C.F.R. pt. 1601 and 1626). 122 Id. Over the last several years, the EEOC’s conciliation efforts resolved less than half of the charges where a reasonable cause finding was made. Specifically, between fiscal years 2016 and 2019, only 41.23% of the EEOC’s conciliations with employers were successful. 123 Id. 124 See Congressional Review Act, 5 U.S.C. § 801. 125 S.J. Res., 117th Cong. (2021). 126 H.R.J. 33, 117th Cong. (2021). 127 Remarks on Signing Legislation Regarding Methane Pollution, Predatory Lending, and Employment Discrimination, Daily Comp. Pres. Doc. DCPD202100551 (June 30, 2021).
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