Colorado-based attorney Merrily Archer explains why she launched a national survey asking employers whether mediators in the Equal Employment Opportunity Commission's Alternative Dispute Resolution (ADR) programs made certain comments and statements during the mediation process.
She said that some EEOC mediators have overstated the risk of enforcement to clients to "scare" them into monetary settlement, despite the charge merits.
The former EEOC trial attorney wondered whether other employers had faced similar tactics, so she created a survey asking participates to recall whether the mediator made certain statements or comments during the mediation process.
For example, questions on the survey include:
So far, 631 participants, mainly human resource professionals, in-house attorneys, management-side lawyers and employment practice liability adjusters, have answered the survey questions, Archer said.
In December 2013, Archer issued a preliminary report on the findings from the 11-question survey. According to the report, nearly 70 percent of participants indicated that an EEOC mediator stated or implied that the EEOC may litigate the charge if not resolved at mediation.
More than 60 percent of the participants reported that an EEOC mediator had stated or implied that the EEOC could launch an expensive systemic investigation and over 72 percent reported threats that the EEOC could issue a reasonable cause determination on the charge, if not resolved in ADR, the report noted.
"This kind of EEOC enforcement activity is unlikely for charges assigned to ADR, under the EEOC's longstanding Priority Charge Handling Procedures," Archer said. The survey's findings will represent "a clearer picture of what EEOC mediators say and don't say behind closed doors," she added.
In fiscal year 2013, the EEOC's mediation program for private sector charges conducted 11,513 mediations and secured 8,890 mediated resolutions. According to EEOC's annual performance and accountability report for FY 2013, the commission collected more than $160.9 million in monetary benefits for complainants through mediation resolution. The amount represented the second-highest total of monetary relief in the mediation program's history, the EEOC said.
Bloomberg BNA: Have you formally discussed the survey's preliminary finding with the EEOC?
Archer: I have not formally discussed survey findings with the EEOC, but its management personnel have attended our webinars where we have candidly discussed the findings. After our webinar in March 2013, the EEOC's chief psychologist said that he would discuss the poll finding regarding threats of systemic investigations with the "powers that be," but I've heard nothing further.
We have been extremely transparent, and hope that the EEOC's management and Commissioners take the findings to heart: just as the prior ADR study revealed in 2003, employers are declining mediation because they question its objectivity, credibility and dissimilarity from the enforcement and legal units, and this study may offer insight into why.
Bloomberg BNA: So far, has the validity of the survey been challenged?
Archer: No, but as responses increase, it will become harder for the EEOC to challenge these findings on statistical grounds. In systemic investigations and prosecutions, the EEOC has justified findings of statistically significant adverse impact based on far smaller databases; accordingly, as we near 1,000 responses, the picture now coming into focus will only become sharper
At this point, we're confident that 631 responses allow us to draw statistically supportable conclusions about the prevalence of these practices, but we're still hoping to hear from more practitioners.
Further, we really tried to avoid bias and promote clarity in the questions by using a basic deposition format with neutral language. Like an evidentiary foundation, we allowed only those practitioners who have participated in one or more EEOC mediation over the past two years to answer the substantive questions.
Unlike prior surveys undertaken by the EEOC, we were not interested in measuring employer satisfaction with the ADR process or program, nor did we seek to discover why employers do or do not participate. Rather, our sole focus was simply whether a particular statement was made, regardless of truth or effect on the hearer.
As a result, the blend of legal and social science concepts in the survey design yielded findings that are incisive and clear. We would urge the EEOC to replicate this survey with its substantial database of participant-employers.
Bloomberg BNA: Do you think that the comments and statements are only used in certain parts of the country? You note in the preliminary report, for example, that about 21 percent of the respondents are from Colorado while about 7 percent are from California.
Archer: Possibly. States are not evenly represented among the survey responses. For that reason, we're keeping the survey open until March, 2014 to enable a broader national cross-section of attorneys and HR professionals to participate. With more responses, we will be able to identify differences by region and by practitioner. For instance, do EEOC mediators make these threats to attorneys and HR practitioners alike?
At this point, however, the sheer volume of responses and strength of the findings enable us to draw supportable conclusions nationally about the pervasiveness of these threats and the likelihood a practitioner will encounter them.
Bloomberg BNA: In your opinion, why would an EEOC mediator apply these tactics?
Archer: The EEOC is very metric-driven when it comes to the number of cause determinations, inventory closures and mediated settlements. Due to explicit and tacit internal management directives and how the EEOC now defines "success" and "efficacy" (i.e., money), some EEOC mediators may apply these tactics to boost "their numbers," and reap whatever rewards come with maximizing this important measurement of productivity and efficacy.
In their defense, EEOC mediators are trained to conduct reality testing about what might happen if the charge does not resolve and gets transferred to the enforcement unit. And, in an infinitesimal number of cases, EEOC enforcement does happen. But, overstating these risks distorts reality, especially for employers and practitioners who do not know how to place them in context.
That's what our study tries to do.
Bloomberg BNA: Do you think that most management-side attorneys will recognize overstated claims made by an EEOC mediator? They will see it as posturing.
Archer: No, most management-side attorneys do not appreciate just how much the EEOC's Priority Charge Handling Procedures (PCHP) dictate the path and outcome of every EEOC charge; many still treat the EEOC as an actual adjudicatory body rather than administrative speed-bump, in term of dollars billed defending against a charge.
For charges assigned to ADR--that is B charges--, the probability that the EEOC will launch a systemic investigation, issue a cause determination, or prosecute any employer is extremely small. Most B charges get heaped onto the "inventory," where they get "handled" but certainly not investigated, as most people would define an investigation.
In their defense, however, PCHP designation is a carefully guarded secret at the EEOC. As two EEOC field supervisors noted at the EEOC's March 20, 2013 hearing, revealing PCHP designation could "hinder" an employer's willingness to settle.
Thus, when EEOC mediators forecast cause determinations, systemic investigations, and prosecutions, it is not irrational for management-side attorneys and in-house counsel to weigh these threats in their settlement deliberations. They often do not know better, and the EEOC likes it that way.
Our study will help us figure out which practitioners more often report the specific threats in our survey.
Do EEOC mediators more frequently talk about bad litigation outcomes and/or future EEOC enforcement activity to management-side employment attorneys, in-house generalists, or HR practitioners? We wonder whether EEOC mediators refrain from using these threats on management-side attorneys anyway, reserving them for less-specialized practitioners less likely to challenge them as posturing or inaccurate.
Bloomberg BNA: Any practical advice for employers who decide to mediate?
Archer: From a cost perspective, it still makes sense to participate in the EEOC's mediation program, but two points stand out. First, employers are paying way too much in EEOC mediations, likely in response to these EEOC mediator representations.
By exposing and disarming these threats, we hope that employers will make more informed risk assessments and settlement decisions in the ADR process.
Second, employers are paying way too much for EEOC mediations. We hope this survey empowers and arms small to mid-sized employers, HR practitioners, and in-house counsel generalists to negotiate more effectively in EEOC mediations, and thereby reserve tight legal budgets for the bigger EEOC risks, namely, systemic investigations and potential prosecutions.
If you're interested in participating in a Q&A on enforcement actions, legal developments or news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs, or you have a suggestion for a Q&A topic, send an e-mail to email@example.com.You can also follow me on Twitter @LCBridgeford.
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