Uncle Sam (via the EEOC) Wants You! (To Mediate)
The U.S. Equal Employment Opportunity Commission (the EEOC) has, for the past several years, made a concerted effort to convince employers to mediate discrimination charges before they are referred to investigation. The EEOC reports that 70 percent of mediated charges are successfully resolved. Most employers decide whether to mediate charges on a case-by-case basis, usually refusing when emotions run high or the evidence is particularly strong in the company’s favor, agreeing when there is exposure or some compelling reason to settle. Citing a number of benefits, which are discussed below, the EEOC is trying to encourage more employers to make mediation a standard operating procedure through the Universal Agreement to Mediate (UAM) program.
A UAM is an agreement between the EEOC and a company to refer all eligible charges to the EEOC’s mediation unit, enabling the parties to get to the mediation table more quickly. Even though a UAM has been signed, however, the company (or the charging party) may nevertheless opt out of mediation on a particular charge. Charges ineligible for mediation include:
Charges that contain a class or Genetic Information Non-Discrimination Act claim.
Charges filed solely under the Equal Pay Act.
Cases as to which the EEOC deems it serves the public interest to investigate the charge.
- Cases the EEOC deems to have insufficient merit to investigate (the charging party will receive a Notice of Rights (Right to Sue) during the initial processing stage).
Employers may agree to a local, regional or national UAM. Local UAMs exist between the employer and a particular EEOC office (e.g., Chicago) to mediate charges filed in the field office’s geographic jurisdiction. Regional and national UAMs are agreements to mediate all the company’s eligible charges in a multistate region, or on a nationwide basis. The EEOC reports that more than 200 companies have signed regional or national UAMs, and over 1,500 companies have signed local UAMs. Indeed, McDonald’s USA, LLC just signed a regional UAM in August 2010.
Benefits of a UAM
Point of contact. A UAM establishes a point of contact at the employer where all EEOC charges are to be served. This helps maintain the confidentiality of charges and limits charges from being “lost in the shuffle.”
Speed and efficiency. The initial step of contacting the company about mediation is shortened or eliminated. Further, the scheduling of a mediation should be expedited.
Flexibility. Companies are not required to mediate every charge. UAMs allow companies to opt out of mediation on a case-by-case basis.
- More time. Companies are given 45 days, rather than the normal 15 days, to decide if mediation is appropriate.
Drawbacks of a UAM
Highlights decision not to mediate. Because all charges are initially presumed to be subject to mediation, the decision to opt out of mediation may draw attention to the charge.
- May be unnecessary. For certain companies, especially small companies, UAMs may be unnecessary because few, if any, charges are filed against them. It is also not recommended for companies not inclined to settle except in the most unusual of circumstances.
Companies need to assess how many charges they receive and whether they are amenable to the EEOC’s mediation program. This program will benefit companies that have a high charge volume; those that wish to explore settlement before the costs escalate, but without appearing overly interested in doing so; or those that have had success with mediation in a particular EEOC field office.