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EEOC Alters Mediation Process Under New Temporary Program

July 7, 2020, 4:15 PM

Equal Employment Opportunity Commission Chair Janet Dhillon announced a pilot program to change aspects of the agency’s mediation program, including expanding the types of worker bias allegations that are eligible for the process.

The workplace civil rights agency uses mediation to resolve disputes under an alternative process to litigation, and existing procedures limit the kinds of discrimination allegations that qualify.

The pilot Dhillon unveiled Tuesday makes more worker allegations eligible for mediation—a move criticized by the sole Democratic commissioner on the agency’s leadership panel. The program also introduces more technology into the process, “to hold virtual mediations,” the agency said in a statement.

Mediation is different from the agency’s normal investigative and litigation process because a mediator doesn’t decide whether an employer or individual accused of workplace malpractice is right or wrong; instead, the parties themselves negotiate and attempt to reconcile the allegations. The pilot began Monday, the agency said, and will last for six months.

‘More Opportunities’ for Resolution

“EEOC’s popular mediation program has been tremendously successful over its 20-year history and the ACT Mediation pilot creates more opportunities to resolve charges throughout an investigation,” Dhillon, a Republican, said in a statement.

But Democratic Commissioner Charlotte Burrows said that allowing more charges to go to mediation is a “grave injustice and a violation of EEOC’s responsibility to enforce the law.”

Burrows, in a statement provided to Bloomberg Law, argued that Dhillon “lacks authority to institute this sweeping change unilaterally, because it contradicts policy formally approved by a Commission vote.” She requested that Dhillon amend the pilot to require the agency to investigate worker allegations before allowing mediation to occur.

Only some charges are currently eligible for the mediation program at the beginning of the investigative process, based on factors including the nature of the lawsuit, the size of the case, and the relief sought by the worker.

Burrows also called on Dhillon to exempt from mediation cases alleging violations of the Equal Pay Act unless employers agree to pause statute of limitations deadlines, and to give EEOC district offices authority to exempt certain cases from mediation when appropriate.

This is the second pilot program Dhillon has rolled out recently that alters agency processes for resolving discrimination claims. The Republican chair unveiled a pilot for the conciliation process at the beginning of June. That initiative, slated to last six months, is designed to resolve claims “more quickly” and ensure “appropriate” levels of management have approved settlement sums before they’re presented to employers.

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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