Tuesday, July 7, 2020: EEOC Announced Pilot Programs to Increase Voluntary Resolutions
The Equal Employment Opportunity Commission (EEOC) announced the expansion of its mediation and conciliation processes with two six-month pilot programs. These pilot programs seek to expand opportunities for parties to voluntarily resolve charges through mediation and increase the effectiveness of the conciliation process.
Pilot Program #1: Mediation Expansion
The EEOC’s mediation process is a voluntary, informal, and confidential way to resolve disputes with the help of a neutral mediator trained to help employers and employees discuss their differences. Implemented in 1999, the current program only allows certain categories of charges to pursue mediation. The pilot program, which started Monday, July 6, 2020, “expands the categories of charges eligible for mediation and, generally, allows for mediation throughout an investigation.”
Note: The EEOC does not provide specifics on the types of charges currently available for mediation and similarily has not identified which kinds of charges will be available under the new Pilot Program. The current EEOC FAQ page on mediation states:
Q: Are all charges eligible for mediation?
A: No. The EEOC evaluates each charge to determine whether 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 to be without merit are not eligible for mediation.
Note: Beginning in the Bush Administration (the father), the EEOC began to internally rank incoming charges as “A,” “B,” or “C.” “C” charges were non-meritorious (typically about 80% of the EEOC’s charge inventory) and are typically not investigated. [The EEOC, unlike OFCCP, has no legal duty to investigate incoming charges and, in fact, investigates only a very small percentage of its charge inventory]. “A” charges are those appearing at intake as likely to be litigation worthy, and are almost always investigated. However, the Commission usually withholds them from mediation because the Commission views them as strong claims for which it usually wants full remedies. “B” charges are claims that could be meritorious depending on the outcome of the Commission’s investigation and are usually available for mediation.
Pilot Program #2: Conciliation Expansion
The EEOC is statutorily required to attempt to resolve findings of discrimination through “informal methods of conference, conciliation, and persuasion.” See 42 U.S.C. 2000e-5. The EEOC’s conciliation pilot, which began on May 29, 2020, adds a requirement that the appropriate management level approve the conciliation offers before they are shared with respondents. This additional step hopes to drive accountability and is part of a broader effort the Commission claims will emphasize the importance of conciliation as a tool to remedy discrimination complaints.