Employment Disputes: Tips for the Employee on How to Prepare for an EEOC Mediation

The Equal Employment Opportunity Commission (EEOC) is literally clogged and, like most Government agencies, grossly under-funded, and there’s been a hiring freeze at the EEOC for years. If you file a case with them to resolve an employment dispute, your case is going to move slower than cold molasses on a winter day!

As a former EEOC mediator who has mediated over 500 cases of alleged discrimination and worked with employees and employers in the public and private sectors, and plaintiff and defense counsel, I believe I offer a unique perspective on the EEOC process when you may be considering filing an EEOC charge, may have already filed a charge of discrimination, or are feeling exhausted and stressed out from feeling powerless to effect a change at work. Simply put: You’re dreading any day but your day off!

In part one and two of a four-part series on how to navigate the EEOC process, I will focus on the employee’s perspective; in parts three and four I'll turn my attention to tips for employers and counsel to increase the likelihood of resolving the EEOC charge in the best possible manner. Additionally, I will talk about another way all parties may be able to avoid the EEOC process entirely.

My experience with having spoken to over 3,000 employees and employers is that filing an EEOC charge is not in anyone’s best interest and is definitely drawing a line in the sand. Sure, it gives you a great sense of power, at least initially, and it will get your employer’s attention. However, I believe there’s another option that can accomplish the same thing, but be more advantageous in the long run. This option will prevent you from having to find another job, also make your “impossible” work situation actually manageable, and allow you to take charge of your workplace troubles without escalating the situation.

There’s an idea that you may not be aware of. On its face it may seem scary or difficult, but will actually save you time and a whole lot of heartache. There are some things we need to talk about before you proceed any further and a couple of things to consider before filing an EEOC charge. When you file an EEOC charge, although it may initially feel satisfying, doing so is indeed a huge step. It’s important to keep in mind when you file with the EEOC accusing your employer of discrimination, you are a making a choice that may be difficult to recover from. I know you feel wronged, and I know it’s your legal right, but is it the best choice in the long run for your well being and ultimately going to “solve” the work problem for you?

Let’s say you have a work situation that is so painful because of a co-worker, a supervisor, or a manager. You’re an employee who thinks that co-worker needs to be fired, or you have a new supervisor who is completely incompetent. Or maybe you’re a supervisor and your manager is a bully, or simply not supporting you with a difficult employee. You don’t want to leave, turn off, or go out on stress leave, but you feel you have no other options.

Under these circumstances it’s quite natural to feel your back is up against the wall, and your only option is to file an EEO/EEOC charge. However, there’s another option, and it’s really a positive one. Suggest to your employer or human resources department that you want to have a mediator who’s outside the company help you talk with the other individual (s) face-to-face before it gets any worse. You are in essence suggesting mediation, rather than filing an EEO/EEOC charge. Of course, you don’t want to mention that you are considering filing a formal charge, but simply state to your employer you love your job and want to increase the productivity of the department and so you are requesting a mediation.

In most cases you may feel uncomfortable going to Human Resources or Employee Relations either because they don’t have the right training, sufficient time available, or simply because they are representatives of the company, and you don’t trust their neutrality. On the other hand an outside mediator has no agenda except to help all the parties in a neutral manner resolve their workplace issues. Whether you know it or not, most employers would rather pay to have an outside mediator come in rather than go through all the trouble of dealing with an EEOC charge with a current employee. Many employers have said they wish they had known about or addressed the problem before they landed on the EEOC’s doorstep.

Having talked about avoiding the EEOC process, I realize that may not be appropriate for every individual or all circumstances, and so let’s talk about the EEOC process and how to get the most out of it for you. Okay, so you’ve filed an EEOC charge and you’re shaking in your boots because you’re still employed by that employer. At the present time the EEOC investigative process takes about 9 months or longer, and most employees alleging a charge of discrimination might be better or more quickly served, if they elected to mediate their case instead. The mediation process has about a 65% chance of success.

Statistics aside, there are three main reasons you may NOT have your case mediated. First of all, you’re angry and feel an extremely strong sense of injustice. You may feel the only way to “punish” or be heard by the employer is to drag them through the drawn out investigative process. Although this is clearly an understandable emotion, it’s just that – an emotion. Although this may sound harsh, the reality is that the person who gets most harmed during investigation might be you.

Secondly your case may not be chosen for mediation. The reason is usually because the investigator believes that the employer may have discriminated against you and so he/she wants to keep the case for investigation. It’s important to keep in mind that the vast majority of those cases do NOT end up with a favorable finding for the employee. Most investigations result in a finding that indeed no discrimination took place, or at least that such a finding can’t be substantiated.

I know you feel like you’ve been through hell and you want justice, but the bar to actually prove the alleged discrimination is incredibly high. Employers are allowed to submit their “legitimate business reason” to explain their actions toward you and to address your charges. Although the employer may have discriminated against you proving it is more difficult than most people realize. What most people don’t know, and what the EEOC does not tell the employee, is that in most EEOC charges the finding is not in favor of the employee because proving discrimination is incredibly difficult. So what may feel like pervasive harassment to you may not be deemed by the law to be pervasive.

Also, keep in mind that in many cases although the EEOC says a “thorough” investigation will be conducted, in fact once the employer’s response to your charges is received by the EEOC, the case is often dismissed without an investigation.

So having said all of this, let’s talk about some ways to prepare for the mediation, assuming both you and your employer have agreed to participate in an EEOC mediation. First of all, contact your mediator and try to be on your best behavior. I know you’re the one that’s feeling you’ve been wronged, but remember the mediator is a human being and people rant and rave at them constantly. I don’t mean sugary, just call them when you’re calm, introduce yourself, and ask them how you can best prepare for the mediation. Not all mediations are conducted in the same manner, and your particular mediator will set the tone and guidelines for your mediation. Ask them how they run the mediation process and what you can do to get ready for the “big day”.

Next, write down a series of “I” statements that state some examples of what exactly led to your filing a charge against your employer. Try to look for themes beyond the specific examples. A good mediator will listen to the details, but look for patterns in the way the two of you are interacting. For example you might say during the mediation to the other person something like the following: “John, when you are giving me instructions I’m really feeling pressured because I’m being told to do four things, without knowing which one you want completed first”. So here you’re making a specific “I” statement which will help John understand what he’s doing that has made you uncomfortable in the past. As you talk about other examples of John’s behavior toward you, the mediator will start to see patterns of how the two of you interact, and guide both of you toward new and more effective ways of communicating with one another.

Looking beyond the specifics in this particular example the theme might be that your boss’ way of giving you instructions is causing you to feel stressed and so you need to figure out a better way of communicating around the assignment of tasks. Don’t worry about figuring this all out prior to the mediation, but just start looking for themes in the specific examples that you plan to discuss. Your mediation will go more smoothly by grouping the examples into subcategories, rather than viewing the instances as different issues.

Then think of several (ideal and less than ideal) solutions to the problem(s). After you’ve done that, think of some more solutions, and be as creative as possible. And finally, and this is really the hardest thing I’m going to suggest, find a friend who can help you with this before the mediation and look at the situation from the employer’s point of view. It may be helpful to play the role of the employer and have your friend play you. This is very challenging, but it’s the best way to get your employer to feel your pain if you feel theirs first. If you can do this and express this at the beginning of the mediation, you will find your employer more likely to hear your concern, and consequently, more apt to give you what you want. Some of my most successful mediations were those where the employee clearly expressed their concerns, but did so in a compassionate and empathic manner.

And now you’re almost ready for the big day. A couple more tips: First, try to get a good night’s rest the night before, but I realize this is nearly impossible. And finally, remember, even if your employer comes in with an army of support (lawyers maybe even two attorneys, human resources, and your boss) they’re afraid too. I’m not just saying this to make you comfortable. I’ve been told countless times that the employer is scared and squirming once they get an EEOC charge. So take a deep breath and tell the mediator you need a break when you feel you can’t hear what anyone is saying, or you’re too scared to proceed. Make sure you actually speak yourself during the mediation, even if you are represented by counsel because no matter what anyone tells you to the contrary, you were the one who actually experienced the incidents.

Next time we’ll talk about some tips to help you handle the actual mediation with minimal emotional bruising!