Why employers should mediate EEOC charges

by Michael Cork, Esq.

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Recent federal court statistics reveal that 78% of all civil cases settle. An additional 20% are decided on dispositive motions-the majority of those in favor of defendants. Thus, only 2% of all cases filed in federal court go to trial. This comports with what any of the federal magistrates in the Southern District of Indiana (and just about anywhere else) will tell you at the beginning of a settlement conference. Interestingly, about half of the 2% of tried cases are employment disputes.

Employment discrimination disputes, by design, involve a long, drawn-out process. The sheer length is designed—not only to weed out groundless claims—but to use “litigation fatigue” effectively to cause cases to settle. But attorneys' fees and costs accrue along the way, so any opportunity for early resolution should be evaluated. One of the earliest opportunities to effectively address a charge of discrimination occurs at the EEOC.

Shortly after the claim is received, counsel and the employer’s representative should engage in a brutally-frank discussion of the charge of discrimination and a response to it. In the grand scheme of things, how important is this charge of discrimination? Is it routine litigation, or does it somehow threaten the company’s “crown jewels” because of the parties involved and the nature of the charges? What message does the employer want to send? Is it, “We defend at all costs," or "We are pragmatists and we recognize the value of resolving a case by paying something—even if we do not believe we have done anything wrong—in order to save money in the ‘long-run.’” Either way, the employer and its counsel need to define “winning.” And understand that the definition is likely to change after several months of legal bills. 

The system is designed to avoid trials. As part of its duty to "conciliate," the EEOC routinely offers mediation at the time it notifies the employer that a charge of discrimination has been filed. If the employer decides to mediate, the EEOC will assume that the employer is willing to pay something to the aggrieved employee. If both parties agree to mediation, then the EEOC will schedule a mediation, normally before a mediator employed by the EEOC. The EEOC mediator is not the same person who will investigate the case if mediation fails. So the mediation will not affect the investigation.

Consider some general factors that mitigate in favor of mediating:

1. It may be a cost-effective way to resolve the claim. Once the parties have agreed to mediate, the employer is not required to respond to the agency’s request for documents or provide a position statement. So, the time and expense associated with drafting a position statement may be unnecessary.
2. Early resolution could be a significant savings of time and expense, since the EEOC may request the opportunity to perform an on-site investigation to review documents and to interview witnesses.
3. A mediation is confidential. Everything that is said during the mediation is considered to be confidential, as is any resulting settlement.
4. A mediation is not an admission of wrong-doing. All EEOC settlement agreements—and most private party agreements—contain non-admissions clauses.
5. The EEOC generally allows the employer to require a supplemental general release as a condition of settlement. A separate agreement that contains a general release and a confidentiality agreement will address all other potential claims and put the matter to rest.
6. You learn things in mediation that you might not otherwise learn. While statements made and positions taken during mediation are confidential, you frequently acquire information concerning the employee’s position that you might otherwise not learn. You will frequently obtain information that you can use in your position statement and defense if mediation is unsuccessful.

In brief, mediating at the EEOC is an early, inexpensive, and effective way to either resolve the claim, or learn more about its strengths and weaknesses.

This article is intended for informational purposes only and should not be treated or interpreted as legal advice. For specific advice, contact the attorney of your choice.