10-Plus Tips for Succeeding in an EEOC Mediation Part One

By Kathryn Schear

Aug. 31, 2008

Many professional workplace mediators have said that for every 50 employees there’s one who is a simmering pot. A simmering-pot is a person whose resentment is at a low boil. Simmering-pot employees have turned off, left the organization prematurely, sabotaged their companies or gone out on extended stress leaves. Some of these pots, if left unattended, will become the people who file charges with the Equal Employment Opportunity Commission, alleging discrimination. The best goal for your organization is to stay out of the EEOC process, and mediation can help you do that. But if a charge has been filed and you’re before the EEOC, consider these tips on how to prepare for success in a mediation. In part two of this article, I’ll suggest some tips for the EEOC mediation itself, as well as some ideas for steering clear of problems in the future.

Tip One: Don’t ignore the simmering pot.
    A recent workplace dispute demonstrates this point. It’s a classic example of a simmering pot who was handled “properly,” but the handling did not address the employee’s underlying concerns. The result was that the employee filed an EEOC charge anyway.

    In this situation, Max, a man in his late 40s, had been working for a private company for five years. The employer treated Max well, and even provided a flexible work schedule to allow him to take care of his sick grandmother. The event that led Max to file the EEOC charge occurred in a meeting he had with his female supervisor. Max alleged his supervisor intimidated him, and he felt scared. The human resources manager addressed the problem “properly,” by investigating the harassment charges against the supervisor, moving Max to a separate office away from the supervisor and assigning him to a different supervisor. But after the incident was handled, Max showed all the signs of someone about to file an EEOC charge: He went out on stress leave, filed a workers’ compensation claim and did not show up for work. The employer responded with all the appropriate notifications to Max, and documented all of the incidents, but never offered to meet with Max and his supervisor together to encourage them to discuss the incident. Eventually, Max filed an EEOC charge.

    When I heard that this simmering pot had landed on the EEOC’s doorstep, I was not surprised. Although the employer had made all the proper legal decisions, Max had not been given the opportunity to vent except in the form of a written complaint. I believe he needed to feel heard by people who mattered at his organization, and mediation is one of the best forums for doing this. Of course, there are no guarantees that mediation would have resolved the issues Max had with his supervisor.

Tip Two: Honestly ask yourself whether you really have a workplace dispute ‘covered.’
    In the case of Max, the employer did not have the situation “covered,” despite a belief to the contrary. I believe the employer failed to recognize the importance of the emotional component of Max’s situation as it went about trying to resolve the dispute. The employer’s focus was clearly too narrow, and the window of opportunity to resolve the situation without EEOC involvement closed. Had the employer initially addressed this problem more broadly, it might have gone away, or at least the employer could have explored negotiating a separation package with Max, which might have benefited everyone involved.

    But once the EEOC charge was filed in Max’s case, the amount of time, energy and resources that had to be devoted to defensive negative actions was far greater than if the heat had been turned down on the simmering pot sooner. Even though the EEOC did offer the employer the option to mediate the charge, the actual time frame to resolve the situation was five times longer than if it had been addressed several months before. And as in most of cases involving employees who still work for the organization, Max sabotaged his employer by engaging other employees in the drama. Some of them had unresolved issues with the organization.

    Often when I talk to managers in HR, equal employment opportunity or employee relations, they tell me they have their employee problems “covered.” They frequently ask me, “How can a mediator provide services that are different from the ones we are offering the employee?” It’s hard for me, as a professional mediator with a degree in conflict resolution and more than 500 EEOC mediations to my credit, to answer this and not sound as if I’m selling my services.

    But the fact is, most savvy employees don’t trust HR, equal employment opportunity or employee relations managers. They’re seen as representatives of the employer. Additionally, most HR and equal employment opportunity managers are used to coaching employees separately, rather than meeting with both the employee and the manager, CEO or other company representative whom the employee sees as the problem. One of the reasons mediation is so successful at resolving workplace disputes is because the parties are in the same room guided by an experienced, neutral third party. When both parties are present, the issues that led to the conflict are much easier to spot. A seasoned mediator will make the parties feel safe enough to reveal the underlying issues. Without getting to those deeper issues, the conflict will likely return.

Tip Three: Consider hiring a neutral third-party mediator to work through the issues.
    Given the factors I’ve outlined here, one of the safest and most productive ways to resolve a matter like this is to work with an outside contracted mediator. The benefit of a contracted mediation option is that an individual outside the company may be more trusted. A professional mediator’s specialty is working with parties face to face to help them understand ways to better work together. The mediator’s only agenda is helping both parties resolve the issues.

    The employer who finds himself at the EEOC is likely to feel frustrated about having to spend the time and resources either to mediate the charge or to go through the EEOC’s investigative process. The employer is also probably asking himself, “Did we miss some of the early warning signs of trouble from this individual?” Most workplace disputes that result in the filing of an EEOC charge don’t spring out of thin air. They’ve been building for a while.

    Although this may sound like I’m blaming the employer, this is not my intention. I am not saying anything about the discrimination charge that has been filed, but many of these alleged cases of discrimination involve deeper issues, such as communication problems or an employee’s feeling of being disrespected. These may be totally unrelated to any form of discrimination. If these underlying issues are not addressed, the workplace problems that will surface may affect the entire organization in a destructive manner. So it’s crucial to try to spot the trouble sooner rather than later, and not to assume it will go away by dealing with it at only the surface level.

    Most people aren’t comfortable handling conflict. As one HR director said to me, “We like to think we can handle it ourselves and are reluctant to ask for outside help.” That’s dangerous thinking. Everyone needs help and advice in resolving workplace disputes, and the smartest people know that asking for help can actually be a sign of effective management. Remember that conflict is inevitable in the workplace, and it can actually be positive if it’s addressed before too much damage has occurred.

    Finally, consider the time and expense involved in the EEOC process. According to the Federal Daily, the EEOC’s case backlog has swelled while its workforce has shrunk. In its 2007 enforcement and litigation scorecard, the EEOC noted that it had received 82,792 private-sector charge filings—its highest volume since 2002. It makes sense to steer clear of that overloaded, understaffed system if you can.

Tip Four: Understand that EEOC mediators want the employer to bring a substantive offer to the table.
    Many EEOC mediators are pressured to resolve a certain number of cases, and that usually means the mediator will try to have the employer offer the employee some monetary compensation to persuade the employee to withdraw the charge. Many mediators at the EEOC will figure out whether you are bringing some consideration to the table prior to convincing you to attend mediation. If you decline to bring consideration, the mediator may guide you toward the investigative process. That is unfortunate, since employers should not be required to bring a checkbook to the EEOC, but in many cities, this indirect screening process is the unwritten law of the land.

Tip Five: Consider whether to bring counsel to the mediation.
    Let’s move forward and assume you have opted to participate in the EEOC’s mediation process, if that has been offered to you. If you haven’t already spoken to your organization’s attorney, I would suggest calling counsel as soon as possible. Attorneys often want to be present with their clients, and since many employers are intimidated by the EEOC process, they frequently lean toward believing they “need” attorneys there to survive the process. If you believe you may have trouble containing yourself, an attorney may serve as an excellent buffer.

    There are several advantages to having counsel present for the mediation. An attorney will help you understand your legal rights, evaluate any liability you may have, make sure you don’t give away the store and generally make you feel more secure and comfortable.

    However, there are also several disadvantages: First, once you elect to bring counsel, the employee will be more likely to also want to have an attorney there. Additionally, with counsel present, the employee may feel more guarded, and that can make the process more formal. Once an employee brings counsel, someone needs to pay the attorney, and you’ll be the funding source.

    Some of the most productive mediations I’ve been involved in were the least formal, without any counsel present. In those cases, the parties struggled with the discomfort. That forced them to communicate with each other, which led the parties to address some of the core issues of the conflict. Some attorneys, in their efforts to represent your interests, may discourage you from speaking to the employee directly. They may prefer to have the mediator shuttle between the parties, rather than staying in an ongoing dialogue with the employee. I cannot stress enough the importance of this kind of dialogue for reaching a meaningful resolution of the issues, especially with an employee who is still working for you.

    Unfortunately, the typical EEOC mediation arena does not encourage this kind of open dialogue. Most EEOC mediators are encouraged to conduct a legal settlement process, in order to accommodate the attorneys. Attorneys frequently believe a controlled process protects your interests, and in certain circumstances that can be true. But in other cases, that control makes for a more stilted process and escalates the tension. That translates into higher costs for you.

    No matter what you decide about the presence of your attorney, it is definitely to your benefit to have at least one or two key people from the company attend so that the employee thinks his charge is important enough for a company leader to have taken a day away from work to listen to him.

    The second part of this article will offer tips on how to succeed during the EEOC mediation.

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