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.
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 …