EEOC turns to mediation - Equal Employment Opportunity Commission - includes related article on disability

Nation's Business, June, 1995 by Laura M. Litvan

Soon after firing an employee who had tested positive ona drug test in late 1993, the management of a small hospital received a letter from the U.S. Equal Employment Opportunity Commission. The document informed managers that the discharged worker, who is black, had alleged that his firing actually stemmed from race-based discrimination.

Typically, a discrimination allegation filed with the EEOC sparks an investigation by the agency, which enforces federal laws banning employment bias based on factors such as race, sex, and age. And because the number of charges has soared the past few years, the average case now takes the agency more than 10 months to resolve. Cases that are litigated generally take even longer.

But in this instance the hospital was offered a faster route to a settlement: EEOC officials offered the services of an impartial mediator to help the hospital and the discharged worker expedite a resolution.

The hospital accepted the offer, one of about 300 companies to do so during the EEOC's experimental use of mediation during 1993-94. And the case was closed quickly, according to agency records, which do not identify either the hospital or the worker. The former employee dropped his civil-rights complaint; the hospital let him use its substance-abuse program and paid him for four accrued vacation day-payment it had denied him upon his discharge.

While there's no guarantee that informal resolutions will abound, the option of trying mediation will soon be more available. In a groundbreaking move, the EEOC's five commissioners voted unanimously in late April to roll out a nationwide mediation program in 1996.

Mediation will not be an option for everyone, however. The agency plans to identify cases where mediation seems appropriate and where it might help both sides quickly resolve a charge. The agency plans to select randomly one out of every 20 or 30 such charges for mediation. Mediation will not be used in cases where it is believed a company has shown a pattern of discrimination against workers or job applicants, commissioners say, and it also won't be used in cases where a charging party's complaint is found to be clearly without merit.

So far, both employers' groups and civil-rights advocates generally support this limited use of mediation.

"In a lot of cases, people just want to get it over with," says Douglas McDowell, general counsel of the Equal Employment Advisory Council, an employers' group that tracks the EEOC's activities. McDowell, based in Washington, D.C., says the EEOC's long investigative process poses problems for employers, partly because it becomes increasingly difficult over time to locate witnesses or records that can be used to defend against a charge.

Many people who believe they are victims of unlawful discrimination feel disillusioned with the EEOC's slow-moving process, says Cathy Ventrell-Monsees, manager of worker equity at the American Association of Retired Persons, also based in Washington. "The problem is that many people don't even hear from an investigator," says Ventrell-Monsees, who has advised some older workers who have alleged age discrimination.

Adoption of a mediation program is part of a larger effort by the commission to deploy its limited resources more effectively as it grapples with a massive and growing caseload. In 1994 alone, the EEOC received a record 91,189 new discrimination charges, and its backlog of unresolved complaints, which are carried forward from one year to the next, reached a record 96,945.

"I think everyone realizes that we are coming to a crisis situation," says R. Gaull Silberman, a commissioner for the past 11 years.

The chairman of the EEOC, Gilbert F. Casellas, says mediation is a first step toward improving the processing of job-bias charges. "While [mediation] is not a panacea for all of the EEOC's operational challenges, I am sure that it will play a significant role in the reinvention of this agency," he says.

Underlying the backlog is congressional expansion of civil-rights protections during the early 1990s in the absence of a corresponding expansion of EEOC staff resources, agency records indicate. For example, the Americans with Disabilities Act of 1990, which extends job-bias protections to the disabled, was the basis of more than 20 percent of all charges filed last year, EEOC records show. Meanwhile, although the agency's overall budget has increased from about $185 million in 1990 to about $233 million for this year, the number of EEOC employees has remained at about 2,860.

Agency officials say other developments contributing to recent increases in the charges being filed are passage of the Civil Rights Act of 1991, which allows limited monetary damages for victims of intentional discrimination, and publicity about the issue of sexual harassment that stemmed from the 1991 Senate confirmation hearings of Supreme Court Justice Clarence Thomas.

The move toward use of mediation was encouraged by Congress in 1991 when it passed the Civil Rights Act. The statute explicitly encourages the use of mediation and other types of alternative dispute resolution when appropriate to resolving charges of employer discrimination.