July has brought the announcement of two six-month pilot programs touted by the EEOC for, it believes, expanding opportunities for parties to resolve Charges of Discrimination voluntarily through mediation and conciliation.
While they sound like the same thing, mediation and conciliation actually carry two different meanings in EEOC-world. Here is what the Commission has rolled out.
First, mediation is the now-familiar process of using a neutral third party to bring the complaining party and the employer together in person to try to find agreement, typically through a managed back and forth of demands and offers. The neutral mediator remains outside the Commission’s investigation and evaluation of the underlying Charge, and the EEOC’s investigators wait to hear from the mediator whether the case has settled or reached impasse before the employer must submit a formal position statement on the Charge. While there usually are not strict deadlines for the negotiation, the mediator rarely stays involved over more than the one-day mediation.
The July announcement from the EEOC states that the Commission will now order more Charges, and more types of Charges, to mediation and will encourage the mediator to continue his or her role even after the investigation process begins. The expansion of the types of cases and of the length of time the mediator will remain involved is what the EEOC is “piloting”—even though mediation itself has been around for years at the Commission.
Bottom line: your case will more likely be referred to mediation, and your mediator will likely stay involved longer and push harder to find a settlement.
Conciliation, as the term is used by the EEOC, describes the effort that investigators (not mediators) undertake to secure (extract?) an agreed-upon remedy from the employer, after conducting the investigation and concluding that there is cause to find discrimination. Conciliation proceeds from the assumption by the EEOC that the employer has acted unlawfully and should settle because, otherwise, the EEOC will sue the employer or will encourage the Charging Party to do so by issuing a “for cause” determination.
The EEOC’s announcement about conciliation is, frankly, a bit obscure: “The pilot builds on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years, and adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents. In short, the pilot seeks to drive greater internal accountability and improve the EEOC’s implementation of existing practices.”
Reading between the lines, managers more attuned to the policy directive of settlement will be involved in the process, because internal rules will require it more plainly than ever before. It sounds like unreasonable EEOC staff members who might demand extreme remedies are less likely to do so going forward.
Sometimes tweaks like these have meaningful impact, sometimes not. As it seems to feel with everything these days, we shall see.