Pilot Programs to Increase Voluntary Resolutions, Expand Mediation Program

The U.S. Equal Employment Opportunity Commission (EEOC), today announced two six-month pilot programs that will expand opportunities for parties to voluntarily resolve charges through mediation and increase the effectiveness of the conciliation process.

“EEOC’s popular mediation program has been tremendously successful over its 20-year history and the ACT Mediation pilot creates more opportunities to resolve charges throughout an investigation,” said EEOC Chair Janet Dhillon.  “Similarly, the change being piloted in the conciliation process ensures internal accountability and emphasizes resolving charges before resorting to litigation.”

Mediation Pilot

Mediation is a voluntary, informal, and confidential way to resolve disputes with the help of a neutral mediator who is trained to help people discuss their differences.  The EEOC’s ACT (Access, Categories, Time) Mediation pilot, which began on July 6, 2020, expands the categories of charges eligible for mediation and, generally, allows for mediation throughout an investigation.  Currently, only certain categories of charges are referred to the mediation program at the beginning of the charge investigation process.  The pilot will also expand the use of technology to hold virtual mediations.

Through the EEOC’s mediation program, first implemented agency-wide in 1999, the agency has conducted more than 235,000 mediations, resolving over 170,000 charges and obtaining over $2.85 billion in benefits for aggrieved individuals – all within an average processing time of 100 days.  Moreover, over 96% of workers and employers who have participated in EEOC mediation reported, when surveyed, that they would return to the program again if they were a party to a future charge.

Conciliation Pilot

Conciliation is an informal and confidential process, required by Title VII, to attempt to voluntarily resolve findings of discrimination before litigation.  By requiring conciliation, Congress made cooperation and voluntary compliance central to the work of the agency, a point that was recognized by the Supreme Court in Mach Mining v. EEOC, 575 U.S. 480, 491 (2015).  The EEOC’s conciliation pilot, which began on May 29, 2020, makes a single change to the process to drive accountability and is also part of our broader effort to emphasize the importance of conciliation as a tool for remedying complaints of discrimination.

The six-month pilot program recommits EEOC to resolving charges through conciliation as these resolutions are one of the most effective means for bringing employers into compliance with the statutes the agency enforces.  The pilot builds on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years, and adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents.  In short, the pilot seeks to drive greater internal accountability and improve the EEOC’s implementation of existing practices.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination.  More information is available at www.eeoc.gov.