A former employee files a charge with the Equal Employment Opportunity Commission (EEOC) against their prior employer alleging that they were unlawfully terminated as a result of discrimination. The parties may be advised that they have the ability to participate in the EEOC’s mediation program. When your client asks if they should participate, what should you say? Here are five things to discuss with your client so that they can make an informed decision about whether or not to participate.

  • They should be advised that the process is completely voluntary. If they elect mediation, the mediation process pauses any investigation, production of documents and avoids costly expenses.

If either side should decline mediation, then the charge would be sent to the enforcement unit for investigation. What does that typically mean? It means that the employer would be asked to submit a position statement in response to the charge and, thereafter, may be asked for documentation. The investigator then sends the position statement and documents to the employee to review and respond. The investigator typically does not conduct interviews, but instead relies on the documents submitted by each side. If the employee does not request a right to sue letter after the EEOC has had at least 180 days to investigate, the investigation process typically lasts for 10 months to a year. However, your client should be warned that the process usually takes longer than a year.

  • They should be notified that the mediation process is free.