The Equal Employment Opportunity Commission announced two six-month pilot programs to expand opportunities for parties to voluntarily resolve charges through mediation and increase the accountability and effectiveness of the conciliation process.
The Commission has used mediation for 20 years to resolve disputes as an alternative to the EEOC’s traditional conciliation and litigation process, but previously charges were referred to mediation only at the beginning of the investigation process.
The mediation pilot expands the categories of EEOC charges eligible for mediation and, generally, allows for mediation throughout an investigation.
The EEOC will still evaluate 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. Mediation is purely voluntary for both parties.
The EEOC’s pilot conciliation program seeks to improve internal accountability by requiring that conciliation offers are approved by the appropriate level of EEOC management before they’re presented to employers. The change builds on EEOC’s renewed commitment for full communication between the Commission and the parties involved in the investigation.
Outlook: The fate of the pilot programs may be determined by the outcome of the November election, since Democratic Commissioner Charlotte Burrows has expressed opposition to both pilots, noting: “Sending virtually every claim to mediation, regardless of the scope or severity of the discrimination at issue, would be a grave injustice and a violation of EEOC's responsibility to enforce the law.”