EEOC Expands Mediation Program During Coronavirus Pandemic

Allen Smith, J.D. By Allen Smith, J.D. July 7, 2020
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​The Equal Employment Opportunity Commission (EEOC) announced on July 7 two six-month pilot programs—one for its mediation program and one for its conciliation process—to make mediation more widely available and to bring about more uniformity in conciliations.

"Both pilots were created on the backdrop of the pandemic," said EEOC Chair Janet Dhillon. She noted that employers and charging parties have an interest in resolving cases promptly and avoiding litigation. Moreover, she said that access to the courts has been limited during the pandemic, making mediation and conciliation more important.

The EEOC first instituted mediation in 1999, holding more than 235,000 mediations and resolving 179,000 cases. Through mediation, the EEOC has secured $2.85 billion in benefits to charging parties with an average processing time of 100 days. That's compared to an average of 289 days for a full investigation of a charge.

Key Changes

Under the mediation pilot program, which was effective July 6, charging parties and employers can ask for mediation throughout an investigation so long as both parties agree to it. Previously, only certain categories of charges were referred to mediation at the beginning of the charge investigation process. That created difficulties and made some employers reluctant to participate because they may not have had time to consider the merits of charges, Dhillon noted.

Conciliation is similar to mediation but occurs only after the EEOC has found that the employer violated an EEO law.

In the conciliation pilot program, which took effect May 29, Dhillon said investigators will need a supervisor's sign-off depending on the size of the proposal. The agency is "trying to drive consistency in the conciliation program," she said.

"Historically, more than half of workplace cases are resolved through mediation. Today's announcement of EEOC's mediation and conciliation pilot programs will further assist HR practitioners in resolving workplace discrimination complaints quickly and efficiently to benefit employers and employees alike. Programs like mediation and conciliation provide an additional pathway for relief, encouraging more amicable resolutions that will create better workplaces for all," said Emily M. Dickens, the Society for Human Resource Management's chief of staff and head, government affairs.

"Mediation is something the EEOC does very well," Dhillon said. She noted that in a survey of employers and charging parties, 96 percent said they would use the process again if given the choice.

EEOC's mediation is free for charging parties and employers, confidential, entirely voluntary, and held before a neutral party, she said. HR professionals "can and should participate in mediations. Frequently, they are the ones who understand the facts underlying the charge" and can inform company attorneys about the pilot program.

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Mediation Process

Although attorneys don't have to be at mediation, either party may choose to have an attorney present. The mediator will decide what role the attorney will play during the mediation.

If either party turns down mediation, the charge will be forwarded to an EEOC investigator. If both parties agree to mediate, the EEOC schedules a mediation, which Dhillon said may be conducted by a full-time EEOC employee or an attorney in the community who has expertise in employment law.

Not all charges are eligible for mediation. The EEOC evaluates each charge to determine if it is appropriate for mediation, considering such factors as the nature of the case, the relationship of the parties, the size and complexity of the case, and the relief sought by the charging party. Charges that the EEOC has determined are without merit aren't eligible for mediation.

A mediation session usually lasts from three to four hours, although the time can vary depending on how complicated the case is, according to the commission.

The mediator doesn't decide who is right or wrong and doesn't have the authority to impose a settlement on the parties. Instead, the mediator helps the parties to jointly explore and reconcile their differences.

Too often, "employers often feel very confident about their case and don't come really prepared to listen," said Lori Armstrong Halber, an attorney with Reed Smith in Philadelphia and Princeton, N.J., who conducts mediations for the EEOC. These employers "miss the opportunity to learn things that might change their assessment," she said.

Because the entire mediation process is strictly confidential, information revealed during a mediation session cannot be disclosed to anyone, including other EEOC staff. Therefore, it can't be used during any subsequent investigation, the EEOC notes.

If the parties don't reach an agreement, the charge will be investigated like any other charge. A written, signed agreement reached during mediation is enforceable in court like any other contract.

During the pandemic, mediations typically have been virtual, said Barry Hartstein, an attorney with Littler in Chicago. The mediator meets with each side separately in virtual caucus rooms, only sharing what he or she has permission to share with the other side.

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Conciliation

Conciliation also is voluntary and occurs after the EEOC determines there is reasonable cause to believe discrimination has occurred. Conciliation is similar to mediation, though its timing differs. But unlike mediation, conciliation is conducted by an EEOC investigator rather than a neutral party like a mediator, which Halber described as "potentially problematic" for some employers.

Mediation usually resolves issues between charging parties and employers—most often with monetary relief, though remedies can be creative, such as re-employment, she said.

Conciliations may award additional injunctive relief, such as training by the commission, that isn't typically reached with mediation.

Conciliation suggests some compromise, but some district offices are more willing to compromise than others, she noted.

Hartstein said some offices have sought "extreme demands" through conciliation, such as damages as high as $30 million or even $100 million. Employers then reject such demands, resulting in litigation.

"It's a positive that the commission is reassessing the processes to make them more effective," Halber said.

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