Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Parties involved with EEOC charges of employment discrimination filed in the past month may notice some new language on the EEOC portal: “For charges filed after July 6, 2020, you may request mediation at any time during the charge process.” Parties typically elect mediation at the very beginning of the charge process or else proceed to the investigation phase. But for charges filed after July 6, 2020, the EEOC is offering an alternative: to mediate at any time during the charge process.
The option is being offered as part of two six-month pilot programs, one for mediation and the other for conciliation, which EEOC Chair Janet Dhillon recently announced in an effort to increase voluntary resolutions of discrimination charges.
ACT Mediation Pilot Program
The “ACT” mediation pilot, which stands for “Access, Categories, Time,” took effect on July 6, 2020. It expands the categories of charges eligible for mediation and permits mediation at any time during an investigation. Prior to this change, only some charges were eligible for mediation based on the nature of the lawsuit, the size of the case, and the relief sought by the employee. Under the ACT mediation pilot, “all charges are, with narrow exception, eligible for mediation,” excluding those charges the EEOC determines are without merit. Senior EEOC management officials may exempt a charge from mediation if a party’s interest would not be well-served by mediation. While EEOC mediations are usually held in person, the ACT mediation pilot program also expands the use of technology to hold virtual mediations.
If the parties request mediation during the investigation, the investigator may or may not participate depending on the EEOC’s discretion and the parties’ preferences. If the investigator participates in the mediation, the parties must acknowledge and agree that the evidence discussed will not be confidential.
Conciliation Pilot Program
Conciliation occurs after the EEOC has found reasonable cause to believe the employer engaged in discriminatory or retaliatory conduct, and involves the investigator attempting to reach a settlement with the employer. The conciliation pilot program, which took effect on May 29, 2020, modifies the existing program to add a requirement that conciliation offers be approved by the appropriate level of management before they are shared with employers. In doing so, the pilot seeks to drive greater internal accountability and improve the EEOC’s implementation of its existing practices.
Negotiating a conciliation with the investigator without participating in mediation is the default process following a cause finding. However, the EEOC will consider and approve specific requests for mediation after a cause finding if the district director and regional attorney agree that mediation is appropriate. If such a request is approved and a mediation is held, the mediator serves as facilitator for the employee, the employer, and the EEOC. At that point, the investigator will participate in the mediation to represent the EEOC’s interest in remedying discrimination.
Impact of EEOC Pilot Programs
The EEOC’s expansion of its voluntary resolution programs will likely benefit both employees and employers because it will promote resolution of more disputes at the administrative level and reduce litigation. Particularly for a virtual setting, as the ACT mediation pilot offers, the costs may be cheaper than attending a traditional in-person mediation. In the past few months due to the pandemic, most mediations have occurred virtually and often with positive feedback. Moreover, the ACT mediation pilot will allow more employers to choose mediation after fully reviewing the case—when they otherwise may be deterred from mediation because of the early deadline following receipt of a charge. While it is generally preferable for mediation to be confidential, it could be beneficial to request the investigator’s participation in mediation under certain circumstances (especially if dealing with a difficult opposing party).
Likewise, the EEOC’s internal review of conciliation offers will help standardize offers that district offices discuss with employers. The new review process will help ensure that district offices are discussing reasonable conciliation offers with employers, which will presumably result in more employers accepting those offers.
Although the programs are temporary, there has been some debate among the EEOC commissioners about whether the chair may unilaterally unveil such measures. The EEOC has issued a Q&A about the mediation pilot available here: https://www.eeoc.gov/questions-and-answers-2020-adr-pilot.