On July 7, 2020, the Equal Employment Opportunity Commission (“EEOC”) announced the launch of two six-month pilot programs with the stated goal of increasing the opportunities for parties involved in disputes to work toward voluntary resolutions without resort to expensive litigation.
The Conciliation Pilot
The EEOC is required by statute to attempt to settle a matter after the agency has issued a reasonable cause determination and before the commencement of litigation. The Conciliation Pilot “recommits” the EEOC to resolving charges prior to litigation by “add[ing] a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents,” and by “build[ing] on a renewed commitment for full communication between the EEOC are the parties.” Though somewhat lacking in any additional detail, the EEOC’s press release on the Conciliation Pilot does note that the program is intended to drive greater accountability within the EEOC and improve the implementation of existing policies. This language suggests that the pilot is driven, at least in part, by concerns about how the conciliation process has been managed in the past. The Conciliation Pilot began on May 29, 2020.
The Mediation Pilot
The Mediation Pilot, which officially began on July 6, 2020, seeks to build on an already high level of success with the existing EEOC mediation program. The program, first implemented in 1999, has seen over 235,000 mediations that have resolved, without litigation, over 170,000 charges. The pilot program is set to expand the categories of charges that are eligible for mediation. While the new categories eligible for mediation have not yet been spelled out, categories of charges that are currently ineligible for mediation include class and systemic charges, charges filed under the Genetic Information Non-Discrimination Act, and those filed under the Equal Pay Act. Including any of those types of charges in the Mediation Pilot would open up thousands of additional matters to the program. In addition, the pilot program will open up the possibility of mediation after an investigation has been initiated. Historically, mediation was only available prior to the initiation of an EEOC investigation. Finally, in what is undoubtedly a move driven by the COVID-19 pandemic, EEOC plans on an expansion of its use of technology in the holding of virtual mediations.
The Employment Law attorneys at Critchfield work closely with clients to help them comply with all relevant equal opportunity and anti-discrimination laws and regulations. When claims cannot be avoided, we are there to ensure quick, effective, and cost-conscious responses. Should you have any questions regarding the EEOC’s mediation or conciliation programs, please do not hesitate to contact us.