You’ve found yourself in an EEOC mediation, with a charge that should not be particularly worrisome. But now, your supposedly neutral mediator is shaking his head and reporting that you can almost certainly expect to be sued by the EEOC if you don’t pay up and settle this now.
What should you do? Keep calm and carry on.
In fiscal year 2013, the EEOC resolved 97,252 charges, yet filed only 131 lawsuits. For the book-makers out there, that’s a chance of 1 in 742. Let’s put that in perspective, with the help of some entirely non-scientific internet searches:
Getting away with murder: 1 in 3
Being selected as a contestant on The Price is Right: 1 in 36
Being born with 11 fingers: 1 in 500
You are, in short, more likely to encounter the six-fingered Count Rugen (who killed Inigo Montoya’s father in The Princess Bride) driving his new motor home south while spending his Plinko winnings then actually facing a lawsuit by the EEOC.
Every mediator has a collection of useful pressure points: “This doesn’t look like a summary judgment case”; “A jury won’t like these facts.” Don’t expect the EEOC mediator to be any different. But, an EEOC mediator telling you that the agency will definitely take up the case is bluffing. In fact, the agency has already made its assessment of your case, which cuts in your favor.
How do you know? The answer is as simple as A, B, C. In 1995, the EEOC adopted its Priority Charge Handling Procedure (or “PCHP” in the acronym-happy agency). Developed in response to the EEOC’s charge volume, the PCHP evaluates every charge on intake with either an A, B, or C ranking:
“A” charges are the 10-20% of cases the agency wants for itself. They usually involve one of the EEOC’s current national enforcement priorities (such as class or systemic discrimination, pregnancy and pay discrimination, and barriers to hiring: see http://www.eeoc.gov/eeoc/plan/sep.cfm for the details), or have particularly credible allegations. These charges will not be referred to mediation.
“B” charges represent 60-70% of all cases. The EEOC lacks the resources and/or interest in taking these cases to court. These cases will still be earmarked for investigation: e.g., a request for a position statement and possibly an information request. Only “B” cases are offered mediation. Let that sink in: If you are at the mediation, the EEOC has likely already decided it doesn’t want to litigate this case.
“C” charges are the other 10-20% of cases that are either untimely, jurisdictionally barred, or just plain silly. Here, the agency won’t ask for anything up front and you won’t be invited to mediation. You will usually just be sent the charge and told that “No action is required.”
Because a picture is worth a thousand words, here is the real thing:
This is a redacted version of what the EEOC produced in response to a recent FOIA request; the ominous black redactions were done by the EEOC. Internet searching helps fill in the gaps.
The redacted line at the top of the page states: “CONFIDENTIAL—DO NOT DISCLOSE.” Apparently, it’s even confidential that this is confidential: so much secrecy is sexy.
The next line of redactions contained the column headers: “A” cases on the left; “B” in the middle; “C” on the right. This case was assigned a “B” ranking but the explanation – the redacted block in the center of the page – is a mystery.
PCHP remains a little-known and closely-guarded secret. Why? The EEOC is driven by metrics: charges received, lawsuits filed, dollars recovered. It equates extracting more money from employers as enforcing the law. In 2013, the EEOC conducted 11,513 mediations; reached 8,890 resolutions; and recovered a record $160,900,000, no doubt with help from such bluffing by its mediators.
This is not a call to forego an EEOC mediation nor to abandon cooperation with the EEOC. Rather, it is an effort to create more transparency in order to facilitate more intelligent decision making in responding to EEOC charges.