On July 7, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced new mediation and conciliation pilot programs designed to increase voluntary resolutions of discrimination charges.
Mediation Pilot Program
Under the traditional mediation program, the EEOC evaluates whether a charge of discrimination is appropriate for mediation based on the allegations, the parties’ relationship, the case size, the case complexity, and the relief sought by the charging party. If appropriate, the EEOC usually offers mediation early in the process before an in-depth investigation. The EEOC’s mediation program has been popular for both employers and complainants. The EEOC charges no fee for mediation and employers may avoid costly litigation and resource-consuming investigations. Importantly, information disclosed in mediation is confidential and is not shared with EEOC investigators and lawyers.
The Access, Categories, Time (“ACT”) Mediation pilot program “expands the categories of charges eligible for mediation and, generally, allows for mediation throughout an investigation.” In addition, “[t]he pilot will also expand the use of technology to hold virtual mediations.” The EEOC’s ACT Mediation pilot began on July 6, 2020, and will last six months.
Conciliation Pilot Program
The Conciliation process begins after the EEOC determines that there is reasonable cause to believe discrimination occurred. In the EEOC’s Letter of Determination, in which the EEOC explains its belief that discrimination occurred, the EEOC invites parties to participate in the voluntary and informal conciliation process. During the conciliation process, the EEOC seeks to resolve the charges of discrimination before considering litigation.
The EEOC’s conciliation pilot program adds “a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents.” This new requirement is in line with the EEOC’s effort to “drive accountability” and is part of the EEOC’s broader effort to “emphasize the importance of conciliation as a tool for remedying complaints of discrimination.” The EEOC’s conciliation pilot program began on May 29, 2020, and will last for six months.
The EEOC’s pilot programs may provide employers more opportunities to resolve charges early and without the costs and operational impact associated with defending lawsuits.
The attorneys at Chilivis Grubman assist businesses of all types and sizes in connection with employment-related litigation, including lawsuits filed under Title VII and the FLSA, as well as investigations by the EEOC. If you need assistance with such a matter, please contact us today.