When a company receives a charge of discrimination from the Equal Employment Opportunity Commission, this means that a current, former or prospective employee has filed a claim that your organization engaged in illegal discrimination.
An individual cannot pursue a federal discrimination charge without first having the case reviewed by the EEOC.
Upon receipt of the charge, the EEOC frequently will offer both parties the opportunity to mediate the claim to a mutual resolution.
There are several benefits to mediation that your organization should consider, even if you believe that your company has done nothing wrong.
Elluz Athonvarangkul, the EEOC’s mediator in the agency’s Richmond office, says mediation is a way to resolve charges quickly and it ensures a confidential and mutual resolution.
Since parties voluntarily agree to mediation, they can gain a better understanding of each party’s position and then determine if they can resolve the matter without further delay and enforcement.
In 2018, more than 70% of mediations conducted by the EEOC were resolved successfully.
This high number of resolutions can be attributed to an established process that works for most situations, Athonvarangkul said.
The EEOC offers the mediation at no cost and assigns a trained mediator to facilitate the process.
During the mediation, the parties can clear up any misunderstandings, find areas of agreement and ideally incorporate those areas of agreement into a resolution.
If an agreement is reached, the resolution is confidential and courts will enforce the confidentiality of the settlement.
For instance, Gulliver High School, a preparatory school in Florida, settled its age discrimination case through mediation with its former headmaster when the parties entered into a standard confidentiality agreement.
Shortly thereafter, the headmaster told his teenage daughter about the settlement and she boasted on Facebook, “Mama and Papa won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer.” A state appellate court ordered him return the $80,000 settlement payment due to confidentiality breach.
Clyde Lochin, a mediator in the EEOC’s Charlotte, N.C., office, says he understands why employers resist mediation because they feel they have done nothing wrong and they fear mediating will appear to be an admission.
EEOC tries to reduce this stigma by explaining the benefit to employers of a guaranteed resolution without a prolonged process that might occur through EEOC enforcement, he said.
This is especially true, Lochin says, where a current employee has filed a charge of discrimination and the parties will need to continue to work together. Having the opportunity for a mediator to facilitate the concerns and positions of all involved will frequently lead to a mutual understanding of the positions and uncover weaknesses in process or management practices.
Even if the employer is right and it has done nothing wrong and the charge is ultimately dismissed, he points out that the underlying problems may remain, affecting others in the workplace. Mediation frequently will uncover and resolve these issues.
Another benefit to mediation is that the parties can design their own solution. Mediation does not always involve payment of money. Sometimes it includes an apology, promotion or other relief.
Since successful mediations avoid litigation and guarantees finality of the process, the EEOC says that 96% of employers surveyed who used mediation said they would use it again if it was offered.
While it is understandable that employers simply want to submit their position statement and put it in the hands of enforcement, employers should at least consider whether mediation is a viable option after receiving the charge of discrimination.