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The laws enforced by the EEOC support the voluntary resolution of employment discrimination cases. Litigation is viewed as a final step to be resorted to only after earlier informal efforts to bring about a settlement have failed to resolve the dispute. The commission encourages parties to seek resolution of discrimination disputes as early as possible in the process and will actively facilitate such resolutions whenever warranted. The commission promotes resolution through four different means: private settlement, mediation, negotiated settlement and conciliation. This paper discusses the four types of dispute resolution and the EEOC’s role in each. PRIVATE SETTLEMENT Private Settlement is a written agreement between the parties without the commission’s participation. Charges may be withdrawn at the request of the charging party, following the EEOC’s review of the agreement. Often, parties misconstrue the commission’s encouragement of early resolution to mean that the commission will blindly accept a request for withdrawal without reviewing the underlying private agreement. Under the EEOC’s procedural regulation, found at 29 C.F.R. � 1601.10, the EEOC will consent to the withdrawal of a charge only when “the withdrawal of the charge will not defeat the purposes of [the act].” Although the EEOC need not be a party to a settlement agreement, the EEOC does have a legitimate interest in ensuring that those cases it consents to withdraw are not resolved on terms that offend the laws it is charged to enforce. Thus, the New York district requires review of the underlying agreement on which the withdrawal is requested, to ensure that it does not contain prohibited provisions. Settlement agreements containing provisions that limit an individual’s right to file a charge, or to participate in an anti-discrimination proceeding by testifying, assisting or participating in an investigation, hearing or lawsuit, are contrary to public policy and violate the anti-retaliation provisions of the laws. See “EEOC Enforcement Guidance on Non-Waivable Employee Rights Under Equal-Employment Opportunity Commission (EEOC) Enforced Statutes” (April 10, 1997). See also EEOC v. Astra USA Inc., 94 F.3d 738 (1st Cir. 1996) (affirming a preliminary injunction ordered by the district court prohibiting such private agreements). Provisions for mandatory arbitration of future discrimination claims (predispute) are also not permissible. See “EEOC Policy Statement on Mandatory Binding Arbitration of Employment Discrimination Disputes as a Condition of Employment” (July 10, 1997). Provisions requiring the tender back of consideration under the Older Worker Benefit Protection Act (OWBPA) also violate the Age Discrimination in Employment Act (ADEA) under the provisions of 29 C.F.R. � 1625.23 (http://www.eeoc. gov/docs/tenderback.html). Once the charging party has filed a charge with the commission, the agency has the responsibility to ensure that the disposition of the case does not have a chilling effect on the exercise of rights or the enforcement of the law. The commission also has an interest in collecting and aggregating data on the nature and extent of the relief resulting from all charges that have been filed. There are sufficient safeguards in the statute to ensure confidentiality of the terms of any resolution. Agency policy prohibits the staff from disclosing any information collected during an investigation prior to the institution of a court proceeding involving that information. Public disclosure of such information is a crime under 42 U.S.C. � 2000e-8(e) and is punishable by up to one year in prison. This should provide sufficient assurance that only authorized commission staff will be privy to the specific terms of any settlement agreement. MEDIATION AND NEGOTIATED SETTLEMENT In mediation, with the parties’ consent, confidential mediation services are offered in an attempt to facilitate settlement of the dispute. Mediation usually takes place early in the process and provides neutrality on the part of the commission’s representatives, as well as a firewall to assure confidentiality of information shared during the process. The mediation process is separate and distinct from the commission’s enforcement process. All parties to the mediation must sign a confidentiality agreement before mediation begins; no information obtained in the mediation process is retained by the EEOC, and all notes taken by the mediator are destroyed. This ensures that information revealed in the mediation process is never communicated to the enforcement staff. Mediation is a nonbinding, party-driven process, usually commenced before any investigation has taken place. The negotiated settlement, in contrast, is a part of the investigation process, and information imparted during settlement negotiations is conveyed to the investigator. The objective of both mediation and negotiated settlement is to arrive at a mutually agreeable settlement, providing relief acceptable to the charging party while terminating the charge process and eliminating any risk of subsequent litigation of the dispute. A commission representative signs the mediation or negotiated settlement agreement and agrees to stop processing the charge. While the objectives of both are the same, the processes are separate and distinct. The EEOC’s mediation program and negotiated settlement process offer distinct benefits for both parties. The commission’s representative plays the role of facilitator, which can help the parties reach an agreement. For charging parties, an advantage of this type of settlement is that the commission has an interest in ensuring that the obligations agreed to in the settlement are met. In the event of a clear breach, the commission may reopen and continue the investigation and may also judicially enforce the agreement. For employers, an advantage is that mediation or a negotiated settlement agreement provides greater assurance of finality of the dispute. When the commission signs the agreement, it promises to cease processing the charge and agrees that it will not seek further relief on behalf of the charging party even if the allegation is supported by information acquired in the investigation. Parties should not seek, and will not receive, any consideration from the EEOC beyond the commission’s agreement to stop processing the charge. CONCILIATION Conciliation occurs after the commission has concluded its investigation and has determined that the respondent has violated the statute. Once this is determined, the commission is obligated to attempt to resolve the case using informal methods of conciliation, conference and persuasion. While a conciliation agreement will consider the particular interests of the parties, the commission’s interests in enforcing the statute must also be taken into account. Beyond individual prospective and monetary relief, the commission attempts to ensure that appropriate changes are made to prevent the occurrence of similar violations in the future. COLLATERAL AGREEMENTS BETWEEN CHARGING PARTY AND RESPONDENT Finally, there are often matters in the resolution of a case that are of no concern to the commission but that the parties wish to address in a collateral agreement. This separate agreement will be referenced in the mediation, settlement or conciliation agreement, and will contain the following provision: The parties have signed a separate agreement and release which shall become effective concurrent with the execution of this agreement. The EEOC has not signed off on this separate agreement, does not approve or disapprove of its terms, and has no interest or obligation to enforce it. The commission reviews collateral agreements to ensure that there are no provisions in them that will offend the statute, just as it does with privately negotiated settlements. Collateral agreements are often used by the parties to resolve matters that are not within the jurisdiction of the EEOC, or to provide a release of other claims related to employment but not subject to the EEOC’s regulation. EARLY MANAGEMENT INVOLVEMENT IS THE KEY TO SUCCESS Those in the company who have the authority to make settlement decisions should be involved in the process, to keep it moving toward a mutually acceptable resolution. Often, efforts to resolve a case will unravel because the decision-makers who have the authority to agree are unavailable or are brought into the process too late. If it is evident that further effort to settle would be fruitless, all attempts at mediation, settlement or conciliation will be terminated. The parties should approach settlement with the desire to end the dispute. They should freely and openly communicate their interests and maintain an attitude of flexibility and compromise, keeping in mind the issues discussed in this paper. To summarize, practitioners and parties should:
� Try to resolve employment discrimination disputes as early in the process as possible; � Request mediation early in the process and agree to participate in mediation when offered; � Expect the EEOC to consent to the withdrawal of a case only after the commission has reviewed the private settlement agreement; � Expect the EEOC to resolve only cases based on agreements that do not limit any individual’s right to file a charge or participate in an EEOC proceeding, and do not require complainants to arbitrate any future discrimination claims or ask them to tender back consideration paid under the ADEA; � Consider the benefits of resolving a case with an agreement to which the EEOC is a party; � Explore settlement possibilities with the investigator during the investigation process; � Seek no consideration from the commission beyond the commission’s cessation of the processing of the charge being settled; � Use collateral agreements to obtain releases of claims over which the EEOC does not have jurisdiction; � Bring decision-makers with the authority to agree to settlement terms into the process at the earliest stages; and finally � Freely communicate interests, be flexible about changing position and have the goal of ending the dispute.

Richard B. Alpert is deputy district director of the U.S. Equal Employment Opportunity Commission’s New York District Office.

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