EEOC Mediation

Resolving employment discrimination claims through the EEOC is often a headache for all of the parties involved, meaning that both the employee and the employer will benefit from having the EEOC mediation process explained.  The EEOC is responsible for investigating and enforcing federal employment discrimination laws, and these investigations are called claims.  During this investigation process, the parties can agree to participate in mediation to help resolve the claim quickly, which can be helpful for parties wishing to move forward and reach an amicable solution.

Understanding this process and its benefits may help a party decide if they would like to participate.  It can also be helpful to know how to prepare for a mediation.  This article will outline the EEOC mediation process and help job seekers, employers, and employees

A Standard EEOC Claim

The EEOC stands for the Equal Employment Opportunity Commission, and, as mentioned above, it is the government organization that is responsible for investigating claims that employers are violating nondiscrimination laws.  Federal laws make it illegal for an employer to discriminate against a job applicant or employee based on race, color, religion, sex, national origin, age, disability, or genetic information.  The characteristic of sex also covers pregnancy, gender identity, and sexual orientation.

These laws apply to most employers who have over 15 employees.  When an employee feels that they have been discriminated against based on one of these characteristics, they can file a claim with the EEOC and ask the commission to investigate.  The EEOC will evaluate each claim fairly and accurately to assess the allegations in the claim, or charge as the organization calls it, to make a finding.

The EEOC also has the authority to sue employers that it finds have violated these laws.  A standard EEOC charge will follow the steps below:

  1. Discrimination: Before a charge will be filed, an employee or job seeker will experience an event or action that is discriminatory in some way or seems to be. As mentioned above, there are a variety of protected characteristics that the employee may have for which they experience discrimination in some way. Discrimination will be any instance of differing treatment for the claimant that is based upon the characteristic.
  2. Filing a Charge: The first step in the charging process begins when an employee or job seeker files a charge with the EEOC. This charge of discrimination will be a signed statement that alleges that an employer, union, or labor organization engaged in employment discrimination.  This charge will require the EEOC to take action, and it must be filed before a lawsuit can be filed in the courts.
  3. Mediation: Mediation will most often occur at this step. If the parties can resolve their dispute without the need for further investigation and stress, it can save the parties a lot of time.  However, this is not the only place where mediation can take place.  If mediation is not chosen here, or if mediation is not effective, the parties will move forward.
  4. Answer: The employer will usually be asked to file a written answer to the charge. This answer will be given both to the EEOC and the person bringing the charge. The original claimant may submit a response within 20 days of receiving the answer.
  5. Investigation: The steps and length of the investigation stage will vary depending on the claim. The EEOC may conduct interviews and gather documents at the workplace to observe the environment. In other instances, these interviews will be conducted elsewhere and documents will be requested.  Depending on the amount of information that needs to be gathered, a claim may be resolved quickly or it may take some time.  According to the EEOC, the average time for resolution is 10 months, but it may be longer or shorter depending on the issues presented.
  6. Determination: Once the investigation is finished, the investigators will detail their determination of whether discrimination occurred or not.
  7. Conclusions: If the EEOC is not able to determine if a law was violated, they will give the party a Notice of a Right to Sue, which allows the claimant to bring a suit in court. If the EEOC does determine that there was a violation of federal law, there will be a conciliation phase, where the parties attempt to resolve the dispute, but if it cannot be settled, the case will be presented to the legal team to either sue or give the claimant the right to sue.

Even the strongest cases of discrimination may end up taking their time and winding through the EEOC before a lawsuit is even filed, which means that the case will still be ongoing and the claimant will need to share their story again at trial.  This intensive process will often push parties to settle before the final result.

Mediating an EEOC Claim

Because of the length of these investigations, many claimants will choose to attempt mediation at any one of a variety of stages in the process.  As mentioned above, the EEOC will begin recommending mediation once a charge is filed, partially because, at this stage, the parties will not be as set in their positions as later on.

However, mediation is an option throughout the investigation process and even after the Commission has issued a determination that a federal law was violated.  This expansion allows the parties to choose to resolve their dispute without penalty and frees up the EEOC’s resources.

Mediation under the EEOC program follows the outline of traditional mediation, meaning that a third-party neutral will meet with the parties and help guide them through negotiation until a settlement agreement may be reached.  The parties and their attorneys will often meet with the mediator, who will tell them the rules and expectations of mediation.  They will then outline their case to each other and the mediator to help establish the issues in the case.

The mediator will then either separate the parties or keep them in the room together while they negotiate the issues and attempt to come to a resolution.  As with any mediation, the parties are free to leave mediation without an agreement and may move forward in the process without a penalty.  Additionally, the parties may enforce the agreement in court if either party does not honor the mediated agreement.

One important distinction that is unique to EEOC mediations is the fact that if the mediation occurs after a determination has been made, the EEOC will attend the mediation as an interested party.  In this case, the neutral will still be an independent neutral to ensure that none of the parties have an unfair advantage.  This ensures that the mediation does not overlook the determination of the EEOC and serves to further protect the parties from a misguided settlement in the face of a determination.

Reasons to Choose Mediation

When moving through the charging process of the EEOC’s enforcement, many parties may begin to see the value in settling the case without following the claim all the way through. But the mediation process may not be the best option for every dispute. This means that it is important to understand some of the reasons that a party would choose to use mediation over continuing with the claim to evaluate whether their claim fits within these reasons.

Some of the common reasons for using mediation to resolve an EEOC claim include:

  • Effective: Mediation is incredibly effective at resolving EEOC charges, with some years achieving as high as a 72% efficacy rate. The fair and efficient process helps avoid lengthy investigations and drawn-out litigation. This means that mediation helps the parties save time on the charge.
  • Free: One of the biggest perks of EEOC mediation is that the process is free for parties that have a charge pending. This makes it even more alluring to parties who would normally avoid paying mediation fees, especially when it is not guaranteed to produce a resolution.  This means that it saves a lot of money for the parties.
  • Control: A large draw for many parties is the aspect of control. If a charge is continued into litigation, the parties lose the option to resolve the dispute within their control.  They will have to allow the judge or the jury to determine whether the discrimination happened and what the remedies look like.  When the parties mediate, they control the resolution of the dispute, which allows them to consider their needs while controlling how much they receive or pay, or whatever other unique options the parties find.
  • Creativity: Many parties, especially employers, may choose not to participate in mediation because they do not want to pay money to the charging party. However, mediation allows the parties to have creativity in their settlement and may not always involve paying money.  In fact, there are often medications that result in a settlement without monetary gain or loss.  The parties can find a way to resolve the charge and still save money.
  • Balanced: Because the mediation will be conducted by a neutral third party, the mediation will not favor one of the parties over the other. This is unlikely to happen in litigation, especially when the EEOC has issued a determination that will likely create presumptions that could be difficult to overcome.  Having a neutral starting point can give the parties extra pace of mind.
  • Confidential: Mediation is confidential, meaning that an agreement reached in mediation cannot be shared outside of the parties to the mediation. This is particularly persuasive for employers that are hoping to avoid public pressure from the charge. Additionally, the discussion that happens in a mediation is not allowed to be used in the investigation moving forward if a settlement is not reached.
  • Relationship: Especially in cases where the parties are continuing to work together, such as a dispute over accommodations given to a person with a disability or how certain populations are promoted, mediation can help the parties feel like they are working together to come up with a solution to the discrimination. This can help the parties continue to keep a working relationship after the charge, unlike litigation, which will often cause a rift between the parties.
  • Comprehension: As the parties share the issues that they see with each other, it can often become clear where the true issues lie and what the parties need to do to solve the problem. It can also help the parties understand the strength of their claim, which can either help them ask for what they need specifically or move forward with a better understanding of their possible recovery.

If these options may benefit a charged claim, it may be time to consider mediation to resolve the dispute.  Finding a solution that works for both parties and can end the dispute without litigation can be the best option for many disputes, and the option should be considered.

Tips for Preparing for EEOC Mediation

When heading into an EEOC mediation, it is important to be prepared to help create the best possible scenario for a settlement opportunity.  Some tips to help the parties prepare for mediation include understanding the following considerations:

  • Best Case: An important consideration to make is the best-case outcome for one’s case in mediation. This is unlikely to be everything that a party would ask for at trial because the collaborative aspect of mediation will require that the parties compromise on some things.  Knowing a realistic top recovery will help temper the party’s expectations to make the best offers.
  • Worst Case: On the flip side, it is important to identify what the worst possible scenarios are for the case. This will help a party understand what the lowest end of a settlement range is.  This requires a knowledge of how the case may resolve at trial and planning with this possible outcome in mind.
  • Opponent’s Case: It is also important to understand what the other party will likely be hoping for, how their case may do at trial, and what their worst-case scenario would be. This will help create a realistic zone of a settlement agreement and help a party understand where their offers are coming from.
  • Necessary Outcomes: When there is an allegation of discrimination, there may be certain outcomes that are necessary for a fair resolution. Understanding what is necessary to make the claimant whole in the face of discrimination is important to shaping a solid settlement.

Keeping these considerations in mind can help a party enter an EEOC mediation ready to take on the challenges and find a solution that works for everyone involved.

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