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EEOC Pilot Programs to Resolve Bias Complaints Raise Questions

Aug. 3, 2020, 1:31 PM

Temporary EEOC pilot programs focused on resolving discrimination allegations through mediation and conciliation have split workers’ rights advocates and management-side attorneys as questions linger about how the pilots will work.

The six-month pilots can be an opportunity for employers and workers to explore alternatives to costly and drawn out litigation, attorneys that represent employers said. Worker advocates and academics said the pilots could give employers the upper hand during the alternative workplace dispute resolution process. But nearly everyone said it’s too early to tell whether the pilots will disproportionately affect one party or the other, given the minimal details publicly available.

“Mediation can play a very, very positive role for everyone because it saves time, it saves resources, and often you can get a more constructive resolution,” said Thomas Kochan, the co-director of the Massachusetts Institute of Technology’s Sloan Institute for Work and Employment Research, of the mediation pilot program. “Not only a financial settlement but some sense of self-respect—that someone walks away, and says, ‘There’s real justice here.’”

Only some details of the programs were made initially available—like implementing virtual mediation sessions and providing more oversight of the conciliation process—while most were kept opaque, worrying some.

The mediation pilot program, made public by EEOC Chair Janet Dhillon on July 7, “expands the categories of charges eligible for mediation and, generally, allows for mediation throughout an investigation,” according to an agency statement at the time. The conciliation pilot, unveiled July 1, “builds on a renewed commitment for full communication between the EEOC and the parties” and “adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents.”

Potential Impact

In fiscal 2019, the Equal Employment Opportunity Commission said it “continued its efforts to conciliate a greater percentage of cases—with successful conciliations rising from 27 percent in fiscal year 2010 to 40 percent in fiscal year 2019,” according to an annual performance report. The agency also conducted 9,476 mediations in fiscal 2017, the most recently available data, and resolved 7,218 of them. Workers filed a total of 84,254 charges of discrimination with the agency in fiscal 2017, and 72,675 charges in fiscal 2019.

Workers are opting in to these alternative resolution processes, signaling that any sort of change, whether through a pilot or a more permanent alteration, would directly impact the resolution of a large number of discrimination allegations.

Dhillon unilaterally implemented the pilots, without bringing them before the commission’s leadership panel for a vote, at the beginning of July.

“We don’t know the problems they’re trying to solve,” said Sharyn Tejani, director of the National Women’s Law Center’s Legal Network for Gender Equity. “Why are you making these changes, and what are you trying to do here?”

Mediation varies from litigation in that it’s a resolution process conducted behind closed doors. That lack of transparency around workplace discrimination issues worries Tejani.

“You lack the chance to make a larger change in a workplace,” she said. “There are certain cases at the EEOC that don’t go to mediation. Why are they suddenly deciding cases should go that way?”

Amid the national conversation on racial equity prompted by Black Lives Matter protests, especially in the workplace, Kochan of MIT also said the agency must carefully analyze how these changes impact workers of color.

“We need to make sure our systems are not producing more inequality,” he said.

Mediation Changes to Come?

Some academics questioned why these changes are being implemented temporarily, and how they will affect justice for workers.

“There are some real public policy questions about this. Are these disputes that we want to have addressed privately?” said Ariel Avgar, an associate professor within Cornell University’s School of Industrial and Labor Relations. “It’s not as though the mediation program hasn’t been in place.”

The agency’s previous approach to mediation restricted certain worker allegations from mediation, based on their nature, size, and complexity. The EEOC also restricted allegations from mediation if an agency investigation had already occurred.

“That limited the number of cases that went to mediation significantly,” said JoAnna Brooks, a shareholder at management-side firm Littler Mendelson. “This new development allows the parties to participate in mediation at any stage.”

Workers are often at the disadvantage in mediation, MIT’s Kochan said, because employers often have more experience and resources. The role of informing workers of their options and helping them predict what could happen if they move forward must fall on EEOC employees.

“The bigger the case in terms of liability, the greater incentive for the employer to mediate, and the less incentive for the worker,” he said.

But timely, meaningful, and cost-effective mediation is a positive, according to Phillip Schreiber, a partner with Holland & Knight in Chicago, who represents employers. And as a pilot, if the desired results aren’t achieved, then it can be ended.

“We will continually be evaluating the results of the pilots, but will not be sharing any metrics at this time,” Kimberly Smith-Brown, an agency spokesperson, said in an email.

Conciliation Consistency

Opinions of the conciliation pilot are equally split, with management attorneys seeing an opportunity to temper inconsistent and “extreme” damages demands, while a former EEOC general counsel sees a bureaucratic slowdown.

Conciliation, unlike mediation, occurs after both an EEOC investigation takes place and the agency has determined discrimination has occurred. It’s also a voluntary process, and has been heavily litigated.

Brooks said she’d seen “extreme” demands for compensatory and punitive damages for workers during the conciliation process, and sees the pilot as a way to rein in some of the inconsistencies. There are statutory limits on damages, based on the employer’s size.

“We see it as a positive development that there’s going to be more oversight to that process,” she said.

A source familiar with the pilot previously told Bloomberg Law that as the damages offer increases as a percentage of the statutory limits, it must be approved by a higher level of management.

But this action adds more layers of review, slowing down the process, according to the agency’s general counsel during the Obama administration David Lopez.

“You’re actually undermining the effectiveness of the agency to do its core mission by adding additional layers of bureaucracy,” said Lopez, now a co-dean of Rugters Law School.

But Brooks said both pilots offer a faster route to resolution, and “oftentimes justice delayed is justice denied.”

“Anyone who has an impending EEOC investigation right now is likely going to be reaching out to their local office, trying to see if there’s an opportunity for mediation,” she said.

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

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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