EEOC ends mediation, conciliation programs piloted under Trump

UPDATE: JAN. 28, 2021: The U.S. Equal Employment Opportunity Commission announced Thursday the conclusion of the conciliation and mediation pilot programs. The agency said it would incorporate into its meditation program "some of the practices the agency has found useful over the past several months," including video technology for virtual mediations when possible.

The announcement is a reversal of an EEOC decision made during the final days of the Trump administration, in which the agency said it would extend the mediation pilot through September 2021.

Participants, particularly employees, "expressed an overwhelming preference for video mediations over audio-only conferences," EEOC said. The agency noted that it would continue to send electronic surveys to program participants and mediators that evaluate virtual mediations.

"I strongly support the prompt and voluntary resolution of discrimination charges whenever doing so is consistent with our mission," EEOC Chair Charlotte Burrows said in the statement. "The Commission will continue to strengthen its conciliation and mediation programs in accordance with the overarching goal of preventing and remedying discrimination in the workplace."

Dive Brief:

The U.S. Equal Employment Opportunity Commission (EEOC) launched two six-month pilot programs to expand opportunities for employers and their workers to resolve charges through voluntary resolutions rather than investigation or litigation, it said in a July 7 statement.
The first of the two programs is a mediation pilot that began July 6 and "expands the categories of charges eligible for mediation and, generally, allows for mediation throughout an investigation," EEOC said. The pilot will also allow for the use of virtual mediations.
The second program is a conciliation pilot that began May 29 and made "a single change to the process to drive accountability," per the agency. The program adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents.

Dive Insight:

The EEOC has described its mediation process as an "informal and confidential way" to resolve disputes between employees and employers, according to a webpage that also states it can take less than three months to resolve a charge through mediation on average compared to charge investigations, which can take 10 months or longer.

The agency is required by Title VII of the 1964 Civil Rights Act to attempt to resolve findings of discrimination on charges through conciliation, according to a 2015 EEOC guidance document. "The EEOC strongly encourages the parties to take advantage of this opportunity to resolve the charge informally and before the EEOC considers the matter for litigation," the agency said.

Following the confirmation of EEOC General Counsel Sharon Gustafson in 2018, observers speculated whether Gustafson might push the agency to emphasize measures like mediation rather than litigation, Bloomberg Law reported.

While EEOC received 72,675 total charges in its 2019 fiscal year, marking the third consecutive year in which that figure declined, last year also saw increases in the amount of relief obtained via mediation, conciliation and settlement in certain charge categories. An analysis by attorneys with Seyfarth Shaw found that relief obtained from sex harassment charges alone via these processes increased from $56.6 million in 2018 to $68.2 million in 2019.

While the mediation and conciliation processes may have some advantages, they've also been the subject of employer criticism in recent years. Last year, the 8th U.S. Circuit Court of Appeals ruled in favor of an employer that alleged EEOC failed to engage in good-faith conciliation before filing a lawsuit. Due to the extended litigation concerning review of the agency's conciliatory practices, employers may face an uphill battle in challenging the agency's actions.

Employers can seek to improve the workplace experience as well as internal investigation and reporting processes for individuals alleging harassment and discrimination, sources previously told HR Dive. Others believe HR practitioners can also play a role in training employees to focus on speaking out against wrongdoing through bystander intervention.