Remarks of Ann Elizabeth Reesman General Counsel Equal Employment Advisory Council

The U.S. Equal Employment Opportunity Commission

Madam Chair, Madam Vice Chair, Commissioners Silverman, Miller, Ishimaru and colleagues: On behalf of the Equal Employment Advisory Council (EEAC), I appreciate the opportunity to appear before the Commission to offer our recommendations on steps that it might take to ensure the future of its highly successful mediation program. We commend the Commission on its efforts to improve and enhance the program, which we believe has demonstrated its value as a beneficial and necessary component of the agencys charge resolution process. Indeed, mediation helps achieve the EEOCs primary aim of preventing and eliminating workplace discrimination through voluntary means.

Introduction

EEAC is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of employment discrimination. Its membership comprises a broad segment of the business community and includes over 330 of the nations largest private sector corporations. EEACs directors and officers include many of industrys leading experts in the field of equal employment opportunity. EEACs members are firmly committed to the principles of nondiscrimination and equal employment opportunity and have a strong interest in ensuring proper resolution of discrimination claims in a timely and efficient manner. Accordingly, many of EEACs member companies have adopted their own internal alternative dispute resolution programs in an effort to address potential problems at an early stage, before they turn into serious problems that can hurt valuable employment relationships. In addition, EEAC member companies are familiar with and have utilized the EEOCs mediation program on a case-by-case basis to address and resolve claims in a manner that satisfies both parties and at the same time eliminates the need for costly and time-consuming litigation.

EEACs Longstanding Support for the EEOCs Mediation Program

EEAC has been a staunch supporter of the EEOCs mediation program since its nascent stages in 1991, when the agency launched its first mediation pilot. In 1993, for example, EEAC submitted written comments to the agency on the use of ADR in EEOC proceedings. And in 1995, shortly after then-Chair Gilbert F. Casellas announced the creation of a Commission Alternative Dispute Resolution Task Force, EEAC formed its own action committee which developed written recommendations to the EEOC on its use of mediation and other forms of ADR in the charge resolution process. At our action committees very first meeting, we welcomed as our guest Commissioner Paul Steven Miller, who chaired the EEOCs ADR Task Force, and who kindly listened to and took back our members concerns and recommendations.

EEACs committee since has evolved into the ADR Project, whose annual Discussion Forums routinely feature presentations by EEOC officials on emerging trends and developments in its mediation program. In addition, EEOC Commissioners and staff members have addressed our membership meetings, providing updates on the development and progress of the program. On its own, EEAC also has promoted the EEOCs mediation program in various ways. In addition to publicizing the program regularly to our member companies, we have included a section on the mediation program in our training course on Investigating and Responding to Discrimination Charges, and have publicized the availability of Universal Agreements to Mediate so that member companies who were so inclined would have the information available.

EEAC appreciates the willingness of the EEOC and in particular Steve Ichniowski, Paula Choate, Irene Hill and now-retired Elizabeth Thornton to partner with us on providing useful and practical information to our members regarding the benefits of EEOC-assisted mediation. We look forward to the continuation of that relationship.

As a long-time supporter of the EEOCs mediation program, we share with you some part of the joy and the sense of accomplishment at the success the program has achieved to date. We may have been as pleased as you were when the first academic study came back showing that over 90% of participants would use the program again if necessary.

We also appreciate the many times that the Commission and its staff have listened to our concerns and suggestions, given our recommendations careful consideration, and often implemented them. EEACs testimony today will center on how the EEOC can continue the success of its mediation program into the future as an alternative means of resolving discrimination charges outside of full investigation and/or eventual litigation.

In particular, we recommend that the EEOC:

Continue to pay attention to the important details so crucial to the credibility of the mediation program;
Formally advise parties to a discrimination charge of the opportunity to participate in mediation during various stages of the charge resolution process;
Continue to seek universal agreements to mediate on the regional and national level;
Expand the referral back pilot program to all EEOC offices;
Expand the referral back program to make it a standard practice for all charges in situations in which the company has an ADR program that the charging party has not utilized;
Seriously consider establishing a policy of deferral to the results of an employers approved internal ADR program;
Explore the feasibility of offering EEOC-assisted mediation at the post-conciliation stage of the charge resolution process; and
Withdraw its opposition to mandatory arbitration.

We believe implementation of the above recommendations would further enhance the quality and credibility of the mediation program, and would also encourage greater participation by respondents and charging parties alike.

Comments on the Current Mediation Program

Described below are our comments and observations on the current status of the mediation program. The section after that presents our recommendations for further improving the program.

Continue Careful Attention to the Details That Are Crucial to the Programs Credibility

Since the EEOC first began its mediation program, EEAC has strongly encouraged the agency to maintain carefully certain basic structural elements that we believe are crucial to the programs credibility. One is the establishment and maintenance of an impenetrable firewall between the investigative operations of the agency and the mediation program. To the extent that employers perceive that information they reveal in mediation will not be held in confidence but may be shared with those investigating this or future cases, they will be disinclined to participate in the process at all.

Another important plank in the agencys mediation program is the use exclusively of qualified mediators, whether employed by the agency or contracted from the outside. As every customer service business knows, one bad experience frequently poisons future relationships, not only with that customer but also with any others who hear the story. So too, a bad experience with an EEOC mediator can hurt the program immeasurably.

We are aware of the agencys careful attention to both of these issues in the past. Indeed, on several occasions we have reported to the EEOC staff particular incidents of which we had learned from our members so that problems could be addressed effectively and their effects minimized. We urge the EEOC to continue to maintain these important elements of the program.

Expansion to the Conciliation Stage of Investigative Process

EEAC is pleased that the EEOC has begun to offer mediation at the conciliation stage of the charge resolution process. Once the agency has determined that the charge has merit, the dynamics of the situation change significantly, and an employer who was disinclined to go to mediation beforehand may now see some value in doing so. At this stage, an outside neutral with no stake in the outcome of the dispute may assist the parties greatly in reaching a mutually acceptable resolution. The prospect of having an outside party facilitate conciliation is particularly attractive to many EEAC members, some of which in the past have felt pressured by the agency into signing conciliation agreements without being given a meaningful opportunity to negotiate their terms. Accordingly, EEAC strongly supports the EEOCs extension of the mediation option to the conciliation stage of the process.

We understand, however, that charging parties and respondents are not routinely informed that mediation is available at later stages of the charge investigation process. This is particularly unfortunate, given that in our experience, most employers who decline mediation at the first invitation do so because either: (1) they have determined, based on their own investigation, that the charge lacks merit, and they have no information to suggest otherwise; (2) they have not yet conducted or completed their internal investigation of the allegations and thus are unsure of the merit of the charge; or (3) they have no way of knowing so early in the investigation whether the EEOC is likely to issue a finding of reasonable cause.

If respondents were aware of the availability of mediation at later stages of the investigation process (such as, for instance, the post-investigation, pre-determination stage) they might be much more inclined to consider it on a case-by-case basis, particularly where the agencys investigation reveals information not previously available to them, and it appears likely that the agency will find reasonable cause. We strongly recommend that the EEOC routinely keep the door to mediation open for both sides throughout the investigation process, and regularly advertise its availability, particularly at key turning points such as the conclusion of the EEOCs own investigation.

Universal/National Universal Agreements to Mediate

EEAC also is pleased with the EEOCs increasing use of Universal Agreements to Mediate (UAMs), under which a respondent and the EEOC reach an understanding that mediation is the preferred method of resolving charges filed against the employer with one or more specified district offices. One of the distinct advantages of the UAM from an employers perspective is that it puts the EEOC on notice of the employers willingness to engage in mediation and thus streamlines the notice process by providing the agency with current company contact information.

Importantly, however, while a UAM signals an employers general willingness to consider mediation, it does not require the employer to agree to mediate every charge. EEAC encourages the EEOC to continue to support the use of local and national UAMs in an effort to further encourage parties to entertain mediation on a case-by-case basis as a viable alternative to full investigation and/or litigation of discrimination charges.

ADR Referral Back Program

EEAC commends the Commission for its implementation of a pilot ADR referral program, under which it agrees to defer processing of a discrimination charge for up to 60 days in order to permit the dispute to be resolved through an employers internal dispute resolution program. As with other aspects of the EEOCs mediation program, EEAC has been a supporter of the referral back pilot program since EEAC first recommended the concept to the EEOCs ADR Task Force in 1995.

The ADR referral back program gives parties an opportunity to resolve their disputes quickly and informally using established, internal dispute resolution procedures. In our experience, EEAC member companies have developed internal ADR programs designed to resolve disagreements quickly and fairly, addressing conflicts before they escalate and cause irreparable damage to employment relationships. Companies have created such programs by choosing carefully from among various ADR options. Many of these programs, often as unique as the companies themselves, utilize several ADR methods, having selected those that are best suited to resolving disputes within that companys particular workforce and culture. These programs now have a long and successful track record of resolving disputes amicably and effectively.

For the EEOC, the pilot referral program is a win-win proposition: successful resolution of an external charge through the referral process would enable the agency to close the case without investigation and thus preserve its investigative resources for other enforcement efforts. If, on the other hand, referral is unsuccessful, the agency retains its ability to fully investigate the charge as it would any other not subject to or eligible for ADR.

We encourage the EEOC to make the ADR referral program a regular part of its charge resolution procedures and to make the program available to charging parties and respondents throughout the country. We further encourage the agency to expand the referral period to 90 or even 120 days to maximize the opportunity to resolve disputes.

We recommend further that the EEOC strengthen the referral back program by expanding it to cover all situations in which the employer has an internal procedure for resolving disputes. As EEAC has suggested before, the EEOC should ask each respondent, at the time the Notice of Charge of Discrimination is issued, (1) whether the company has an internal ADR procedure; and if so, (2) whether this charging party used the procedure with respect to the matters complained of in the charge. If the company has an ADR procedure and the charging party did not use it, the EEOC should refrain from making a request for information, and instead defer to the internal procedure for attempted resolution. In addition, the Commission should allow at least 90 to 120 days for the process to work. As the Commissions own FY 2003 enforcement statistics reflect an average processing time of 160 days, this is not an unreasonable request.

Moreover, we recommend again that the EEOC seriously consider establishing procedures for deferring to the results of employers ADR processes in appropriate circumstances. As we explained in our 1995 comments, after an internal ADR procedure has been completed that addresses the issue or issues raised in a charge, the Commission should review the procedure and the result, and take both into consideration in determining whether any further investigation is warranted. This approach is comparable to the Commissions policy guidance on internal investigations of sexual harassment complaints: If the employer takes immediate and appropriate action to correct the harassment and prevent its recurrence, and the Commission determines that no further action is warranted, normally the Commission would administratively close the case. Policy Guidance on Current Issues of Sexual Harassment, N-915-050 (March 19, 1990), reprinted in EEOC Compliance Manual (BNA) 615:0061, 615:0069.

Deferral to the results of the employers internal procedure could and should include the results of an arbitration hearing. The Supreme Court has stated that [w]here an arbitral determination gives full consideration to an employees Title VII rights, a court may properly accord it great weight. Alexander v. Gardner-Denver Company, 415 U.S. 36, 60 n.21 (1974). Further, as the Commission is aware, the National Labor Relations Board has a long-standing policy of deferring to an arbitrators decision where (1) the unfair labor practice issue was presented and considered by the arbitration tribunal; (2) the arbitral proceedings were fair and regular; (3) all parties to the arbitral proceedings agreed to be bound; and (4) the decision of the arbitrator was not repugnant to the purposes and policies of the National Labor Relations Act. Spielberg Manufacturing Company, 112 NLRB 1080 (1955). The Commission should seriously consider doing the same.

Recommendations for Expanding and Improving Mediation Program

Expand EEOC-Assisted Mediation to the Post-Conciliation Stage of the Charge Resolution Process From EEACs perspective, the EEOC has done well to expand mediation to the post-cause, conciliation stage of the investigative process and to expose more charges to internal ADR programs. We believe more can be done, however, to resolve charges informally outside of court, such as making EEOC-sponsored mediation available at the post-conciliation stage.

If mediation was not used at conciliation, for some reason, and the agency has determined that it intends to bring its own lawsuit, one final effort at mediation serves both sides interests in avoiding costly and protracted litigation. Even if the EEOC has made a determination not to pursue the case in its own name and instead has issued the charging party a right-to-sue notice, mediation may still serve the parties mutual interest if they indeed seek to avoid litigation.

It may be that while some charging parties are eager to have their day in court, most are able to appreciate the value in attempting to resolve their dispute without a lawsuit. In addition, for those charging parties who were unwilling initially to participate in agency-sponsored mediation but now find themselves without the EEOCs litigation assistance (or with a no cause finding), the offer of mediation may now be an attractive alternative to costly litigation.

From an employers standpoint, the availability of post right-to-sue mediation could be extremely valuable. Not only would it give the employer a chance to resolve a case that appears to be destined for federal court, regardless of the results of the EEOCs investigation, but it also could provide one final opportunity to help to heal bad blood between the parties as a result of the adversarial positions taken during the administrative charge resolution process or that is inevitable should the case proceed to litigation.

Post right-to-sue mediation also furthers the EEOCs obligation to use voluntary means of settlement and persuasion to resolve discrimination charges, pursuing litigation only as a last resort. Of course, the employer ultimately would retain the right (as does the charging party) to decline to participate in mediation, depending on the facts and circumstances of the case.

Reconsider General Opposition to Mandatory Arbitration

While the EEOC has been consistent in its support of voluntary mediation and other forms of ADR, it has opposed the use of mandatory arbitration to resolve employment disputes, even though the U.S. Supreme Court, as well as every federal appellate court, including the Ninth Circuit, now has endorsed the legality of mandatory agreements to arbitrate. Given the unequivocal uniformity in the courts on this issue, we urge the EEOC to reconsider its anti-arbitration position in favor of a more moderate approach.

In Gilmer v. Interstate/Johnson Lane Corp., the U.S. Supreme Court confirmed the validity of arbitration as a means of resolving employment-related disputes, ruling that statutory discrimination claims may be subject to compulsory arbitration by agreement. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). It made clear in Gilmer that as a general rule, [h]aving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue. Id. (quoting Mitsubishi Motors Corp.v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).

The Court thus unequivocally rejected general challenges to the arbitration process as an adequate means of vindicating statutory rights, even those under statutes designed to advance important public policies. Quoting Mitsubishi Motors, it held that [s]o long as the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function. Gilmer, 500 U.S. at 28 (quoting Mitsubishi Motors, 473 U.S. at 637). The Court reaffirmed this strong public policy favoring agreements to arbitrate employment disputes in Circuit City Stores, Inc. v. Adams, acknowledging the real benefits to the enforcement of arbitration provisions while soundly rejecting the supposition that the advantages of the arbitration process somehow disappear when transferred to the employment context. Circuit City Stores, Inc. v. Adams, 121 S. Ct. 1302, 1313 (2001). As the Court reasoned, [a]rbitration agreements allow parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation .... Id.

The lesson of Gilmer, Circuit City and their progeny is that if there is a way to enforce the agreement, the court (or, in this case, the Commission) should do so, resolving doubts in favor of arbitration. The EEOC continues to resist this principle, however, opposing mandatory arbitration under any circumstance.

We believe that the time has come for the Commission to bring its views of mandatory arbitration in line with those of the federal appellate courts and rescind its 1997 policy statement opposing mandatory arbitration. We urge that it be replaced with reasonable due process guidelines that employers and charging parties would be able to use to gauge the validity of mandatory agreements to arbitrate on a case-by-case basis.

Conclusion

EEAC commends the Commission on its efforts to expand the use of mediation and other forms of ADR to resolve discrimination charges. We appreciate the opportunity to provide the agency with our recommendations, which we hope it will consider earnestly as it moves forward in this important endeavor. Thank you.

This page was last modified on December 2, 2003.

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