September 2013 Bar Bulletin
 
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September 2013 Bar Bulletin

EEOC Mediation from the Employer's Perspective

By Beth Golub Joffe

 

Employers faced with charges from the EEOC may want to consider the EEOC's mediation program as a form of resolution. The EEOC's mediation services are free for most charges and employers may find participating in the process to be beneficial.

The Process

The EEOC will contact both parties to determine whether they are interested in participating in mediation. If both parties agree, the EEOC will use a mediator who works at the EEOC or, at times, engage an independent mediator.

Parties may come to the mediation represented by counsel or not. Of course, particularly for an employer, having legal representation is highly beneficial, if not essential.

The mediation process takes place before the investigation and generally relieves the employer of its obligation to submit a response to the charge while the mediation process is pending. If mediation is successful, the charge matter at the EEOC will be closed, and a withdrawal of any corresponding charge at the state-level, fair employment agency can be withdrawn as well.1

If the employer is not contacted by an EEOC representative early on about participating in its mediation program or if the opportunity is denied after an employer's specific request, this is a clear indication that the EEOC is viewing the charge as an opportunity to pursue a broad-scale investigation and potential litigation matter in its own name, on behalf of the charging party and likely a "class" of "similarly situated" individuals.

Other than the legal fees incurred and the time involved (which is not significant), there is no downside for an employer to participate in mediation. Settlements at this stage can be fully confidential and may result in being much lower than at any other stage in the life of the dispute, particularly if the charging party is unrepresented by counsel, which is frequently the case. If the charging party is not represented by counsel, recompense of the attorney's fees invested in the case is not a factor.

Of course, there are compelling reasons that an employer may not want to agree to settle a dispute for any amount and, instead, fight the allegations. First, the employer may feel strongly about its actions and may want to pay to defend the charge. Second, it may not want to set a precedent of settling just because an individual files a charge. Remember, there is no cost to an individual for filing a charge and there is no requirement, legally or practically, that the individual hire an attorney to do so.


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