Employment & Labor Insider

I have long been a fan of the voluntary mediation program offered by the U.S. Equal Employment Opportunity Commission. As most of you know, the program allows the parties to an EEOC charge to try to resolve it before the EEOC begins its investigation. It's economical because it can dispose of a charge very early, there is no mediator's fee (or you already paid the fee in tax dollars, depending on how you look at it), and in my experience the vast majority of EEOC mediators have been quite good.

But that's not to say the program was perfect. Before last summer, you usually had to agree to mediate before the investigation began. If you didn't go for it at the beginning, then the EEOC would rarely let you do it later on. If you and your adversary rejected mediation in the beginning but later decided that the case might be resolvable (is that a word?), you often had to hire a private mediator, settle the case, and report the outcome to the EEOC, which would then dismiss the charge. Usually. Not always.

Also, large categories of cases that employers might want to settle were excluded from the program. For example, if sexual harassment was involved, the EEOC would generally say that the case was "not suitable for mediation." Charges involving so-called "systemic discrimination" generally could not be mediated.

But EEOC Chair Janet Dhillon (R) has placed a high priority on voluntary resolution of charges. As a result, the EEOC began a pilot program last July that allowed either party to ask to mediate at any stage during the investigation of the charge. (Of course, the other side would have to agree.) So, under the pilot program, you could see how the charge was going -- and if you were the charging party, you could even see what the employer said in its response to your charge -- and then decide whether to cut your losses.

In addition, some categories of charge that used to be generally ineligible for mediation became eligible. Why, you could even ask to mediate a sexual harassment charge! 

Well, anyway, this pilot expansion of the EEOC mediation program has now been extended through September 30. The longer the better, I say. I hope they'll extend some more.

Political note: The five-member EEOC will have a Republican majority until Ms. Dhillon's term expires in July 2022, but President-elect Biden will be able to replace Ms. Dhillon with a Democrat, which will put Democrats in the majority. It remains to be seen whether this expanded mediation program will survive in the long term.  

Image Credit: Meditating dude from flickr, Creative Commons license, by Petr Meissner. Happy people from Adobe Stock.