Can Mediation Improve EEOC Conciliation?
Lorene Schaefer has seen employment discrimination from both sidesas a general counsel who handled bias complaints against her company, and then as a plaintiff in a class action lawsuit charging gender discrimination.
So it makes sense that in late March the federal government invited her as one of seven attorneys to come to Washington, D.C., and discuss how to make the system at the U.S. Equal Employment Opportunity Commission work betterfor both complaining employees and their employers.
My view is that its important as a matter of public policy that our resources go to try to help the parties resolve the dispute, Schaefer told Corpcounsel.com on Wednesday. Right now there is a huge missed opportunity.
Schaefer is the former general counsel of General Electric Companys transportation division. And its no surprise she favors mediation over lawsuits.
She is currently a mediator and independent workplace investigator for the company she founded, One Mediation Inc., as well as its Workplace Investigations Group. She also writes a popular employment law blog, Win-Win HR.
While still general counsel, she sued GE in May of 2007 in a class action suit alleging systemic, company-wide discrimination against its more than 1,000 female executives and female in-house attorneys. The case ended in a confidential settlement in 2009, and she has been a proponent of mediation ever since.
I think taking cases to court is not good for the employer or the employee, Schaefer said, adding that she thinks the EEOC should look at the bigger picture of where they are using their resources as a government [agency], and what is their mandate.
Schaefer included her suggestions in written testimony to the EEOC as part of a meeting to develop the agencys quality control plan.
The meeting included three roundtablesone made up of EEOC front-line staff, one of employer and employee legal representatives, and one of EEOC managers.
In the usual agency process, the EEOC offers its own mediation before an investigation starts. If, however, once it does an investigation and finds reasonable cause that discrimination has occurred, it then provides the employee with a right to sue letter.
In most cases, the EEOC itself doesnt bring suit, and its up to the employee to hire a lawyer. The agency then will offer a voluntary conciliation session.
The EEOC has been criticized as using take it or leave it tactics in the post-cause conciliation step, according to Schaefers written testimony.
If conciliation fails, the agency usually leaves and takes its notable leverage out of the dispute, Schaefer said.
She called it a lack of meaningful conciliation efforts by the EEOC, and a lost opportunity.
She urged the agency to implement a pilot program incorporating a formal alternative dispute resolution process into the EEOCs conciliation step. Among other things, that would mean bringing in an independent third party to mediate the dispute.
The mediator wouldnt make findings, she explained, but would try to help the employee, the employer, and the EEOC resolve the dispute without going to court.
So far the agency has not responded to her suggestion. But feedback at the meeting was not hopeful, she said.
Schaefer said in an ensuing panel discussion, a group of managers who run EEOC field offices spoke against her suggestion. They saw no value in bringing in a mediator once the agency investigators found reasonable cause to believe there was discrimination, she recalled.
What I found so troubling was their almost visceral reaction to having a mediator participate once there was a cause finding, she said.
Schaefer shrugged, I dont understand the intensity of their reaction. My take-away is that nothing will change.
In a statement released after the meeting, EEOC Chair Jacqueline Berrien didnt mention Schaefers idea. But she pledged to carefully consider the recommendations of our staff and external stakeholders on how to strengthen and improve EEOC's administrative enforcement program.
Regardless, Schaefer isnt giving up, and she has started writing a paper about her idea. I think its an opportunity for more education at the EEOC, and for most employers who have not faced a for-cause finding, she said.