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Has your company been faced with the potential threat of an EEOC investigation? You’re far from alone: in fiscal year 2022, 73,485 claims of discrimination were brought against employers through the EEOC.
When an EEOC charge is filed against an organization, the preparation and investment involved in defending the charge during an investigation can be exhausting, time-consuming, and expensive. As an alternative to the traditional investigation process, a charge may be eligible to proceed through a confidential EEOC settlement and mediation process.
In this article, we’ll discuss the questions employers frequently ask about the EEOC mediation and settlement process, including: when mediation might be an option, what an average EEOC settlement amount looks like, when not to opt for mediation, and more. We’ll also show you where to turn for help organizing your HR compliance strategy—so you can avoid run-ins with the EEOC in the future.
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EEOC mediation is a form of alternative dispute resolution. Most federal agencies are required to offer parties an alternative dispute resolution option; often, the process saves the government (and the parties) significant time and expense that would have otherwise been spent on litigation.
Mediation may be offered to parties to an EEOC complaint at the discretion of the Commission—but it is not always offered. If it isn’t offered, parties may request it, and it may be granted (again, at the sole discretion of the Commission). The Commission will not permit mediation of a complaint that they determine is meritless.
Mediation may be offered at different stages during the EEOC claim process. It is often offered at the outset of the process, right after a claim has been filed and before an investigation has begun. Generally, if successful, mediation is a viable alternative to the investigation process.
Mediation may also be offered after an investigation takes place, during a step in the process called “conciliation.” Conciliation can be another opportunity for parties to avoid potential litigation following a determination by the Commission that reasonable cause exists that discrimination occurred.
Yes, an employee can decline to go through the EEOC mediation process, and so can the employer. EEOC mediation is a completely voluntary process from both ends of the table. One or both parties may decline to participate in mediation, and the complaint will proceed to a determination by the EEOOC of whether reasonable cause exists that discrimination occurred. If mediation is not successful, the complaint will proceed to the investigation stage.
On average, it takes less than three months to resolve an EEOC charge through the mediation process. This is much quicker than the alternative—a full-blown EEOC investigation, and possible litigation thereafter—which can take 10 months or longer.
The actual mediation session generally takes around three to four hours but can be longer or shorter depending on the circumstances surrounding the complaint.
Most EEOC mediations are successful in producing a resolution that is agreeable to both parties. Out of 9,036 cases in fiscal year 2020, (the last year for which full data is available) 6,272 cases were resolved, marking an over 69% success rate.
EEOC mediation outcomes (otherwise known as EEOC settlements) vary widely. In fiscal year 2020, 6,272 cases were resolved through EEOC mediation, and a total of $156.6 million was awarded in monetary benefits.
Though the EEOC does not report official average settlement amount numbers, the average monetary payout of a settled case, according to these numbers, would be $24,968.11. Keep in mind, however, that not all EEOC settlements involve monetary payouts. According to the EEOC, 13.5 percent of cases do not involve any monetary settlement.
Yes, participation in EEOC mediation is free for both parties. The EEOC runs on federal funding. While parties may choose to hire counsel for the mediation, they are not required to do so. As the mediation process is not a criminal proceeding, “free” counsel will not be appointed to either party if they cannot afford it.
Yes, EEOC mediations are confidential, unlike the litigation process. Parties must execute confidentiality agreements in order to participate in the mediation process. Mediations are not recorded or transcribed.
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EEOC settlement results in the closure of a charge, which can only be reponed in very narrow circumstances. At the conclusion of the mediation, a written agreement detailing the terms of the outcome will be executed by both parties and the mediator.
The terms of this written agreement are enforceable in a court of law. If the parties breach the terms of the agreement, allegations of breach may be litigated.
Just because mediation is offered by the Commission doesn’t mean an organization has to go through the process. That said, while a business can decline to mediate, here at Axcet, we usually recommend it.
Even if you feel the claim has no merit, the mediation is free and allows you to better understand the charges and make a more informed strategic decision. It still may end up going to investigation but turning down the mediation isn’t something we recommend for employers.
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If you’ve been hit with an EEOC discrimination charge, it may be through no fault of your organization or its management team. However, it’s always a best practice to review the initiatives you have in place to avoid accusations of discrimination in the future.
At Axcet, you’ll find experienced HR compliance and employee relations consultants who are ready to evaluate your workplace policies, procedures, culture, and training processes. We’ll make improvement recommendations tailored to your unique industry, people, geographic locations and more. Every company’s culture is unique—but we can all make strides toward avoiding EEOC charges moving forward.
To learn more about how Axcet HR Solutions can help, schedule a consultation with a member of our team today.
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