The U.S. Equal Employment Opportunity Commission

I. Introduction

The Equal Employment Opportunity Commission’s (EEOC) mediation program was initially introduced as a pilot program in 1991 in four field offices (Philadelphia, New Orleans, Houston, and Washington). The program was expanded and by the end of 1997 each district office had a viable pilot mediation program.2 In 1999 the program was fully implemented nationally as an integral component of the EEOC’s charge resolution process. An evaluation of the program found that it was very well received by charging party and employer participants.3 Although employers who participated in the program are very satisfied with it, many employers do not use the program. This prompted the EEOC to commission a study into the reasons why employers decline to participate in a program that is so well accepted by those employers who participate in it.

The EEOC awarded a contract to Drs. McDermott, Jose, and Obar through the Center for Conflict Resolution at Salisbury University to conduct an investigation into the reasons why some employers elect to not participate in the EEOC mediation program. This team has prior experience with the EEOC mediation program, conducting two separate inquiries into the performance of the program.4

The purpose of this study is to understand the decision-making processes and dynamics that surround the employers’ decision to decline to participate in the EEOC mediation program. More specifically, the objectives of this study are to: (1) Examine whether the respondents conducted an internal investigation of the EEOC charge prior to making the decision to decline the opportunity to mediate, and if they did, what different types of internal investigative actions/tactics did they engage in; (2) Explore whether the respondents were familiar with the EEOC mediation program prior to their decision to decline to participate in the program; (3) Investigate the reasons for the respondents’ election to decline to participate in the program; (4) Analyze the respondents’ general perceptions about the EEOC and its mediation program; (5) Gather information about the attitudes of external participants—external attorneys and consultants—concerning the factors that might influence their decision about mediation; (6) Investigate whether there was anything the EEOC could have done differently so that respondents would mediate the charge; and (7) Solicit general feedback for the EEOC.

This report is organized into six major sections. After the brief introductory section, the second section presents the research methodology used in the study. The third section gives a profile of the respondents and charges. The results are presented in the fourth section. The fifth section presents the conclusions of the study and the final section presents their implications.

The Offer of Mediation By the EEOC

Each EEOC office has flexibility in the mediation offer process. This was intentional in the design of the program to ensure that the program is flexible and meets the varying program and workload needs in each office. In general the following procedures are followed to encourage parties to mediate.

After a charge of discrimination is filed, the EEOC provides information to the charging party about the mediation program and explores whether the charging party would be willing to participate in mediation. The actual mediation is contingent on whether 1) the charge is eligible for mediation and 2) the respondent agrees to mediation. Once it is determined that the charge is eligible, the respondent is invited to mediate the charge. The respondent receives an invitation to mediate along with a mediation fact sheet and/or brochure describing the program.

Following the intake of the charge, the eligible charges discussed above are assigned to the office Alternate Dispute Resolution (ADR) unit. Here the staff makes additional efforts to "convene" the parties.5  The ADR staff may provide additional information describing the benefits of the program. If respondent has not replied to the invitation to mediate, ADR staff usually contact the respondent by telephone to answer any questions regarding the EEOC mediation program and to encourage respondent's participation.

In general, the respondent is given 15 days to respond to the initial invitation to mediate; this time frame is flexible and may vary if more time is needed. If the respondent agrees to mediate, the time limit for providing an initial position statement in response to the charge, which is usually 30 days from filing of the charge, is waived while the charge is in the mediation process.

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This page was last modified on December 2, 2003.

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