Trust me, I’m with the Feds Featured

9:49am EDT July 22, 2002

The name Clarence Thomas will go down in the history books for a number of reasons: as the second black Supreme Court justice and first person to widely introduce the infamous Long Dong Silver to the nation’s cocktail party conversation.

But among his lesser-noted legacies, the Georgia native also presided over a huge backlog of cases while he served as chairman of the Equal Employment Opportunity Commission during the Bush Administration.

And now the EEOC, for years resource starved but more recently given a $37 million budget increase by Congress, is trying to whittle that pile of old cases down to a more manageable size. Once up to 112,000 cases, the backlog is expected to dip to 44,000 active cases, although 80,000 new charges a year continue to be filed with the agency.

EEOC chairwoman Ida Castro was in Cleveland recently to promote the use of mediation by businesses, which thus far have only warily embraced a local pilot project.

Under mediation, the agency cannot force a settlement of employment discrimination charges. Both the charging party and the company charged must agree to submit to the process and both must sign confidentiality agreements. Unlike cases in which the EEOC is investigating, the agency isn’t a party to mediations, but merely a facilitator. If no settlement is reached, the case reverts to the agency’s normal investigative track.

EEOC mediation has won high marks from parties that have tried it, Castro boasted. But the bottom line, and no doubt the real reason for her visit, is that “employers decline our offer to mediate 65 percent of the time,” even though 60 percent of the charges are settled in one day or less (the average session is one to five hours). Smaller employers, she added, reject mediation at an even higher rate, “even though they can benefit more” from removing such a major management distraction.

She was forced to acknowledged the obvious: The EEOC, which for 30 years has rightfully been seen by business as a tough, even ruthless beat cop watching over employment practices, hasn’t had much occasion to engender maximum trust among employers. But she said the agency has erected an “impenetrable firewall” between its mediations and its investigative unit.

All notes from mediations are destroyed, and cannot ever be used against a party if mediation fails and the case is sent back to agency investigators. She pitched mediation as a tool for management to be proactive.

“Find out what it means to take control of your own employment disputes,” she said. Perhaps most improbably, though, she repeatedly referred to the agency’s “customer service” capacity, language which must have an especially bizarre ring for any company on the receiving end of an EEOC investigation.

Underscoring the notion that business remains just as wary of EEOC mediation as it is of the agency, panelist Richard Chesnik, corporate director for human resources for Cleveland-based Brush-Wellman, immediately lit into the initiative when his turn at the microphone came. “I hope that this program is a systematic change in how the EEOC does business, as opposed to the backlog-buster du jour.”

Chesnik ticked off a number of methods the agency has used to cull its caseload in the past, including what he called agency “SWAT teams,” which were known to call companies out of the blue on six-year-old cases when periodically directed to winnow its backlogs.

Moments later, the first question from the floor was similarly hostile. “Why would an employer agree to mediate when they’re sure they didn’t do anything wrong?” one human resources staff member pointedly asked.

Castro, quickly shifting from her earlier conciliatory posture, went on the offensive. She cited egregious examples in which employees “were treated like dogs,” including one in which an employee was raped by a supervisor, then fired by upper management when she complained. “We’ve found too many bad actors that lie, and they hurt all of you. Those that fight us tooth and nail hurt all of you,” she said.

Furthermore, she noted, while business might feel the EEOC is hostile to its interests, she claimed to constantly run into the opposite attitude among charging parties: “That we’re in bed with companies, that we’re [thereby] useless.”

In the end, though, even corporate defense attorney Tom Barnard of Ulmer & Berne said there’s some utility to mediation, at least when both parties want to go that route. In his experience, he said, if both sides agree to mediation, they’ll typically settle the case.

But many clients will always be deadset on litigation, he says, either because opposing counsel hasn’t yet found damaging facts during the discovery phase or because the client is intent on setting a prophylactic precedent for future scofflaws.

“I’ve had clients go to trial for the stealing of a candy bar” to set a precedent in the grocery business, he said. Under those circumstances, “if they’re not interested in mediation, they won’t agree to it. And the EEOC’s wasting its time” in trying to talk them into it.

Mediation at a glance

Additional facts about EEOC mediation program in the Cleveland district, which covers all of Ohio:

  • Under a three-year-old pilot program, the EEOC’s Cleveland district has been offering to mediate cases brought before the agency. In the last 11 months, about 250 mediations have taken place.

  • The Cleveland district has four internal and 38 external mediators, triple the number available last year. Due to the recent increase in the agency’s budget, outside mediators, who had been serving on a pro bono basis, are now being paid.

  • The EEOC’s Cleveland district, along with counterparts in Chicago and New York, will soon enter a joint pilot program with the American Bar Association, under which lawyers will be provided pro bono to interested parties.

  • The Cleveland office, like other EEOC offices, has a liaison for small businesses interested in mediation.

For more information on EEOC mediation, contact the agency’s local mediation supervisor, Loretta Feller, at (216) 522-2001 or consult the agency’s Web site at www.eeoc.gov.