Expect More EEOC Mediation Under Trump Administration

ADA litigation likely will remain prevalent

By Allen Smith, J.D. Dec 20, 2016
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The Equal Employment Opportunity Commission (EEOC) probably will rely more on mediation under the Trump administration, legal experts say.

"The EEOC's mediation program has improved and I expect the EEOC to continue to apply resources to it, especially given that it accounted for the largest portion of money and benefits secured by the EEOC for charging parties" during fiscal year 2016, said Jon Yarbrough, an attorney with Constangy, Brooks, Smith & Prophete in Asheville, N.C. Fiscal year 2016 concluded for the federal government at the end of September.

Employers also can expect many cases brought under the Americans with Disabilities Act (ADA) to be continued, wrote Paul Patten, an attorney with Jackson Lewis in Chicago, and Kristin Bauer, an attorney with Jackson Lewis in Dallas, in an e-mail to SHRM Online.

All Charges to Mediation?

"There are many open questions about the EEOC under President-elect [Donald] Trump," they wrote.

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"Currently, both parties need to consent to mediation." But since the Clinton administration the EEOC has not mediated Equal Pay Act charges, class actions and systemic matters. While the charges that are kept from mediation represent a small fraction of EEOC cases, they consume significant enforcement resources. Patten and Bauer said mediation of systemic charges could reduce such cases.

"Conceivably, a Republican-majority commission could change the EEOC's practices and allow all charges to go to mediation. To the extent this creates more work for EEOC mediation units, resources could be reallocated from enforcement to mediation," they wrote.

What Mediation Is

Mediation occurs early in the EEOC process and, to facilitate settlement, the EEOC serves as a neutral party, they explained. Information is not shared with the commission's investigations unit.  
For some EEOC charges, the agency invites the charging party and the respondent to mediate soon after the charge is filed, said Donald Livingston, an attorney with Akin Gump in Washington, D.C., and former general counsel for the EEOC.

"If the charging party and respondent agree to mediation, the charge is sidetracked off the investigation process," he noted.

If mediation does not resolve the charge, the charge is then subject to:

  • Investigation.
  • Determination of whether there is cause to believe that discrimination occurred.
  • If there is a finding of cause, conciliation.
  • Possible litigation, if conciliation fails.

Conciliation

The EEOC is not neutral in the conciliation process, Patten and Bauer noted.

"The EEOC is driving negotiations and has an interest in pursuing litigation if an agreement cannot be reached, often because the matter involves an issue that falls within one of the EEOC's strategic enforcement priorities," they said. "Almost all conciliation agreements contain provisions unrelated to relief to the charging party: training, policy changes, workplace postings [and] reporting. … For all these reasons, employers may perceive the conciliation process to have a 'scorched earth' element that is not present in an EEOC mediation."

ADA Litigation

ADA claims are among the most frequently litigated claims by the EEOC, they said, and the act was passed and expanded under Republican presidents, Patten and Bauer noted.

"As such, the EEOC's interest in ADA claims may continue under a Trump administration, continuing to make this a top compliance priority for employers," they wrote.

The ADA restricts wellness programs, drug testing, physical agility tests, fitness-for-duty examinations, post-offer pre-employment medical examinations and light duty. "The EEOC has leveraged its investigation powers to target employers' practices in these areas, which often touch on significant portions of an employer's workforce," they wrote.

[SHRM members-only toolkit: Designing and Managing Wellness Programs]

"Questions such as how long of a leave of absence is a reasonable accommodation and whether telework is a reasonable accommodation will continue to dog employers, leading to more charges and more lawsuits," Yarbrough predicted.

In addition, Livingston noted that the EEOC has emphasized and focused its resources on systemic cases since Naomi Earp was EEOC chair from 2006 to 2009. "This is likely to continue," he said.

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