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Labor: EEOC Mediation

The letter from the local office of the Equal Employment Opportunity Commission (EEOC) greets you on a typically busy morning. You have been named as a respondent in a discrimination charge.

With little to no notice, and regardless of your busy schedule, you are now expected to submit a position statement within a couple weeks' time. Furthermore, anything in your position statement can be used against you in court should this charge ever turn into a lawsuit.

Of course, there is the prospect of an on-site investigation as a possible follow-up to your position statement, which turns practically every person interviewed into a retaliation-plaintiff-in-waiting. And in the highly likely event the charge is dismissed with a no-cause finding at the end of this process, you still face the prospect of a lawsuit being filed against you.

You notice an invitation to mediate among the papers sent. Though it may be the last thing you want to do, it's critical that you accept the invitation. Here's why.

EEOC mediation is fast

An employer could conceivably mediate a charge within only a month or two of its receipt. By contrast, an investigation follows an aspirational 180-day timeline, but often takes longer.

If the EEOC issues a cause finding, you still have a ways to go in the conciliation phase with the EEOC. However, if the EEOC finds no cause, the charging party still has the option of bringing suit.

So spending two months on the front-end in mediation to avoid spending up to two years on the back-end just makes sense. And even if mediation is unsuccessful, you will probably walk away with a better idea of the charging party's case.

EEOC mediation is less expensive

Since the EEOC's mediation services are free, the only cost is your human resources representative's, and perhaps an attorney's time, if you choose to bring one. This expense is slight when compared to the time and money you will spend preparing an adequate position statement.

Because the mediation will generally take place soon after the charge was filed, you may never be in a better bargaining position. You have spent less time and money up to this point dealing with the charge since no position statement has been filed. You can put those savings toward settling the case.

Consider also that the farther you get from an employee's date of harm, the larger the damages grow. If you fired the employee only a couple of months prior, the amount of lost wages they have sustained up to that point support a much smaller settlement offer than would be the case if many months (or years) were to pass.

Finally, more often than not, the charging party has not yet retained an attorney at the mediation stage. Once they get an attorney involved, the price of playing poker--and the chances of losing--increase.

EEOC mediation is better

Even with a frivolous charge, EEOC mediation gives you the chance to confront the charging party directly and offer a settlement amount accordingly. Since the process is confidential, if the charging party won't settle for nuisance value then the worst thing that happens is you go back to the investigative stage.

Mediation is also a better option due to the viral nature of EEOC charges in the workplace. Even if an employee did not initiate a discrimination complaint, he or she is still protected from retaliation just by being interviewed incident to its investigation. Thus, like the Hydra of Greek mythology, an employer may find itself successfully cutting off the head of one potential claim only to find it later sprouts multiple claims in its place, cascading into numerous battles with the EEOC that do absolutely nothing to add to your company's bottom line.

Read David Evans' next column.

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David Evans

David Evans is a shareholder with San Antonio-based Langley & Banack, practicing employment and commercial litigation.  Langley & Banack is a member of...

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