The EEOC's alternative dispute resolution program: a more civil approach to civil rights disputes.

The U.S. Equal Employment Opportunity Commission began to implement a successful nationwide mediation program in the late-1990s as a way to resolve employment discrimination claims. In the last few years, the EEOC'S backlog of cases, as well as its processing time, have been reduced by over 50 percent. In addition, the use of mediation has been widely praised by both charging parties (i.e., employees) and respondents (i.e., employers) as an effective and efficient way to resolve their employment discrimination disputes and increasing the likelihood that the parties can continue an employment relationship.

Introduction

Historically, civil rights enforcement has been anything but civil. To many, the enforcement system seemed to exacerbate the problem by encouraging protracted litigation. In short, it was as if the enforcement system was designed to "make a federal case" over every employment discrimination claim. Everyone involved -- employers, employees and the federal agency entrusted to enforce the discrimination laws, the U.S. Equal Employment Opportunity Commission (EEOC) -- seemed to have a gripe about the system.

For employers, discrimination lawsuits had increasingly become a serious threat to the bottom line. EEOC statistics have indicated that the average discrimination violation costs employers over $14,000 (7). And while the same statistics have indicated that employers had been "winning" about 80 percent of claims filed each year with the EEOC (7), these numbers hardly tell the whole story. The impact on an organization's bottom line, when such things as attorneys' fees, workplace disruption and lost productivity are included, has undoubtedly been much greater.

Not that employees were enamored with the EEOC's traditional enforcement procedure. Over the years, the long delays in processing claims through the EEOC's traditional enforcement procedure had left many employees with the feeling that their civil rights were more imaginary than real. By the late 1990s, for example the EEOC's average processing time had grown to over 600 days (2). In sum, justice delayed had too often become justice denied.

Among those most aware that the system had broken down was the EEOC itself. After years of accumulating additional responsibilities with the enactment of new civil rights laws (e.g., Americans with Disabilities Act) or the development of new legal concepts (e.g., sexual harassment), staffing levels at the EEOC had simply not kept pace. In 1999, for example, disability and sexual harassment claims, virtually unheard of 10 or 15 years earlier, were being filed at a rate of 30,000 per year and accounted for almost 40 percent of the EEOC's caseload (7). During the same period, however, there was no appreciable increase in EEOC staffing (8). As a result, the EEOC was falling further and further behind in meeting its statutory mandate of enforcing federal discrimination laws. By the mid- to late 1990s the EEOC had a backlog of over 100,000 cases (4).

For the last few years, the EEOC has promoted a form of alternative dispute resolution (ADR), mediation, as a solution to the problems surrounding the resolution of employment discrimination claims. This article will examine the question of whether an organization should utilize the EEOC's ADR Program and, if so, what preparation should take place prior to the mediation. The actual EEOC mediation process will then be explained and the key elements of any mediated agreement will be discussed. This analysis should assist organizations in assessing whether the EEOC's ADR Program truly is a more efficient and effective -- and civil -- way to resolve their employment discrimination claims.

The Promise of Mediation

Prior to the initiation of the EEOC's ADR Program, employees who believed they had been victims of discrimination would either quit, use the company's internal complaint procedure, if one existed, or file a lawsuit. Employers who had an employee complaint procedure usually provided some type of "open door" system to their employees to help resolve their employment disputes. Employees were generally told to file any complaints with their supervisor, a division head, the human resources department or the company president. While such open door policies seemed logical at first glance, they rarely worked as intended. Indeed, research has indicated that employees who filed complaints were often viewed as troublemakers and suffered lower subsequent performance appraisals, lower wage increases and, not surprisingly, higher turnover than those who did not file complaints [5]. It is as if the open door had an "exit" sign on it. Moreover, the cost and delays involved with filing a claim with the EEOC, as noted earlier, made such action an unattractive option for employers and/or employees. Mediation, at least theoretically, appeared to offer several advantages over traditional enforcement procedures such as EEOC complaints and lawsuits and internal dispute resolution procedures, such as "open door" systems.

First, mediation offered the likelihood that the employment discrimination complaint could be resolved faster and cheaper. The EEOC's initial pilot studies of mediation indicated that complaints were resolved substantially quicker, and therefore more economically, than under the traditional enforcement system. For example, the average time from filing the charge to completing the mediation in the pilot program was just 67 days -- compared to 294 days to complete the traditional EEOC enforcement process (2). Moreover, while it is unknown whether or not typical open door systems resolve employee disputes more quickly than EEOC mediation, the studies noted earlier indicate that open door systems were likely to be ineffective in either uncovering discrimination problems or successfully resolving them once they came to light.

Second, mediation offered the distinct advantage of providing both parties with a "reality check" from an unbiased third party rather than a company-paid employee or a government investigator. Indeed, it is often not the message, but the messenger, who is critical in resolving employment discrimination claims. For employees, outside third parties generally have more credibility than company representatives, be they managers or human resource staff. For employers, outside third parties generally have more credibility than EEOC investigators. This is not an indictment of the truthfulness or effectiveness of managers, human resource staff or EEOC investigators. It is simply a fact that parties will invariably assess another's credibility through a prism of self-interest. The emphasis on neutrality allows the mediators, and the mediation process, to play the special role of "truth-teller." An EEOC study has found, for example, that the parties viewed EEOC mediators as unbiased at the beginning of the process, and believed they remained neutral throughout the entire mediation (1) By playing the role of an unbiased "truth-teller," the mediator can help the parties reevaluate unrealistic assumptions and, consequently, bridge the gap between the parties' initial positions.

Third, EEOC mediation offers the parties confidentiality. A public airing of problems before the EEOC or a court not only damages future relationships and organizational morale, it often provokes parties to "dig in" and maintain rigid positions for fear of looking like they "caved in." In that sense, litigation is a double-whammy -- not only does it make compromise more difficult, it almost guarantees that there will be a employment relations hangover, regardless of the outcome. Mediation, on the other hand, offers the promise that anything revealed during the mediation will be kept confidential. Moreover, the EEOC's ADR Program specifically requires that the parties agree not to use any information disclosed during mediation in any subsequent proceeding. Indeed, the EEOC ADR Program includes an explicit "firewall" that strictly prohibits any communication between the mediators and the EEOC's investigators (3). The confidentiality afforded by mediation allows the parties to make the admissions and compromises necessary to reach a compromise solution.

Fourth, mediation's non-adversarial setting not only increases the probability of compromise but also reduces the tension and hostility that can get in the way of the parties rebuilding their relationship. Since a mediator is a conciliator, and not a decisionmaker, any "decision" is left to the parties, increasing the parties' acceptance and overall satisfaction with the outcome and providing the basis for rebuilding a fractured employment relationship.

Fifth, mediation's flexibility greatly expands the universe of possible solutions. The remedies available under Title VII of the Civil Rights Act of 1964, for example, are set forth in the statute. Mediation, on the other hand, can include issues not addressed and provide remedies not contemplated by the law, and tailor a settlement to meet the parties' needs. Mediators, by drawing on their experience resolving different disputes in a variety of situations, can also provide a wider array of possible solutions than an internal complaint system that is inherently limited by the organization's past practice. Moreover, unlike internal dispute resolution procedures, mediation can act as a "lightning rod" or "face-saving" device to speed needed organizational change. Finally, the mere fact that a mediated solution is not limited to simply responding to past wrongs, means that solutions can be fashioned to prevent future problems.