A Look at Where EEO Claims Come From, and How Mediation Can Help

I recently gave a presentation about the role of ADR in addressing EEO claims, claims made alleging discrimination in workplaces on the basis of characteristics like age, gender, religion, disability, race, national origin, and sexual identity.  One of the audience members expressed surprise at the high number of claims filed with the United States Equal Employment Opportunity Commission, along with state and local civil rights agencies, each year.  What explains the continuing rise of these EEO claims?

There are two primary reasons I see for the continued prevalence of EEO claims in the workplace.  First, our workplaces are becoming increasingly diverse.  This is true in terms of the ages of workers, with Millennials working side by side with Boomers, as well as in terms of greater diversity of race, gender, religion, sexual orientation and identity, and disability status.  This means that the workplace creates an environment where people are brought together to interact with others that they never otherwise would.  While this can be the basis for increased productivity and the birthplace of great creativity, it also ensures that there will be conflict as people from different backgrounds and perspectives learn to communicate with each other.

But I think there is a second reason that is equally important to the continued prevalence of EEO claims, and this reason provides a real opportunity to mediation and other forms of ADR in the workplace to have a real impact.  The reality is that there are not that many accepted and understood ways for employees to address conflicts in the workplace.  One of the best understood methods is to file an EEO claim.  This is a process that is well understood and made easily available to employees. While this is of critical importance to the eradication of discrimination in workplaces, it also means that many other conflicts that may not actually be EEO claims become captured in this necessarily wide net.

This is where the benefit for early mediation of EEO claims becomes apparent.  By providing an opportunity to address problems head on and give all parties a chance to explain their sides of the story and understand where the other party is coming from, mediation provides a forum to discuss solutions to all workplace problems.  The issues at hand, whether they are EEO issues involving unequal treatment in the workplace, or whether they are another type of dispute, can be clarified and appropriately handled in the course of a few hours to a few days, rather than taking years to wind their way through an administrative agency and the courts.

There is proof that early mediation of EEO claims is an effective and attractive method of conflict resolution.  In a study done of the EEOC’s Alternative Dispute Resolution Program, which provides employers and employees a chance to mediate a charge of discrimination early in the process before the time consuming investigation takes place, an overwhelming percent of mediation participants said they would choose to utilize mediation of EEO claims in the future.  In fact, 96% of employers and 91% of charging parties (employees who filed the charge of discrimination) indicated they would use the mediation process again if the opportunity arose, even where the results of the mediation were different than they had anticipated.

Early mediation of EEO claims is the best way to help your organization handle workplace disputes in a timely and cost effective manner, helping everyone to get back to work to get things done.

Back to Basics: What Does a Workplace Mediator Do?

 

Being home for the Thanksgiving holiday gave me a wonderful chance to reconnect with my family members, some of whom I had not seen since starting my new practice as a workplace mediator and conflict resolution professional.  Over pecan pie, my cousin asked me, “So what does a mediator do, anyway?”

I began by explaining to her that I used to be an employment law litigator, meaning that I would assume the position of my client and argue on their behalf in court.  As an advocate, I would only be working with one half of the story, and be pushing for the best possible result to satisfy that one half of the equation.

Now, as neutral, I still work with parties in legal conflict, but instead of taking up one side’s case and pushing for that party alone, I now have the opportunity to work with both parties in order to help them resolve their conflict.  I no longer take sides, and I no longer have to try and solve problems with only half of the story available.  Instead, now I bring both parties together, help them understand the entire story, and then work with them to come up with solutions that will resolve whatever problems have arisen.

“So how does that relate to being a lawyer?”  Her follow up made a lot of sense.  I explained to her that I am able to be successful precisely because of my background as a litigator.  Because I know the law and procedure underlying these issues, I can understand how they are likely to unfold.  I can ask the right questions to help the parties understand the strengths and weaknesses of their case.  I can also help them understand what it would look like if they continued with their administrative or judicial proceeding, which in turn helps them better decide whether it makes sense to settle right here and now or see what happens down the line.  And I can do this all over the course of a few hours to a few days.

“Well, that sounds like it would save a lot of time and money,” was her reaction.  I told her I could not agree more, and shared with her one of my experiences as a trial attorney for the EEOC. I took a case to trial in late 2011, after the lawsuit had been filed in federal court in 2008, based on a charge of discrimination that had been filed with the EEOC in 2005, arising out of allegations of sexual harassment that began in 2003.  For eight years, this employee and his employer were enmeshed in this legal battle, spending far more than what the case finally resolved for on the first day of trial.  If everyone could have engaged in mediation early on, so much time, money and energy could have been saved and better spent elsewhere.

Even better, I also told my cousin about how workplaces are starting to use alternative dispute resolution practices early on to address and reduce conflict, and how I have been brought in to help improve communication in workplaces and mediate disputes long before lawsuits begin.  I also told her about how I have been brought in to workplaces to help new projects and teams take off by helping everyone to understand their goals and their ground rules.  After hearing all of this, she told me that as a dentist, she could see the use for workplace mediators in her workplace, and certainly in others.

My cousin and I both agreed on two key points: the potential for mediation in the workplace is tremendous, and pecan pie is the ideal end to a Thanksgiving feast.