I feel compelled to say the EEOC process should be your final option and if at all possible, even if you’ve already filed a charge, try to approach your employer and see if you can work it out without the assistance of the EEOC. If you don’t trust the neutrality of Human Resources and EEO management, find an outside mediator who can contact your employer to suggest all parties sit down and resolve the issues without a Federal agency. Remember, once you walk into the EEOC mediation the problem may spin out of control.
Despite what I’ve just said, I recognize proceeding with the EEOC mediation may be the option you choose.
And so having filed the EEOC charge about 60 days ago, having followed the tips I suggested in Part one, and having agreed to try mediation, a mediation session has been scheduled (assuming your employer also has agreed to mediation). When you arrive for the mediation, you’re feeling terrified, and who wouldn’t feel this way under the circumstances? First of all, remember to listen carefully before you speak because you’ll be tempted to blurt out the first thing that pops into your head. Secondly, if you’ve brought a lawyer, let your attorney direct you. Thirdly, if you’ve brought a support person (you will want to check with the mediator before doing so) make sure this person follows your lead.
Remember a person’s body language and facial expressions are what most people notice when they first meet someone. You may want to take a quick peek in the nearest mirror to see what facial expression you’re “wearing”. After doing this, try to “put on” your most relaxed face because it will bring out the best in the people you’ll be interacting with during the mediation.
Once the mediation starts, remember to wait and follow the mediator’s lead. The mediator will guide the process and usually start with introductory remarks, which will include information about confidentiality. In general, the parties must keep confidential anything discussed during mediation whether the case is resolved or not. If the matter is resolved during mediation the charge will be closed when settlement paperwork is finalized. If the case is not resolved it is referred to investigation, and the parties then provide evidence and testimony to an investigator. Confidentiality only applies to information revealed by the parties during the mediation process.
Okay, so the mediator has completed the introductory remarks and your attorney, if you have one, has also spoken. In many cases, the attorney will ask you to speak first and then will add additional remarks. The sequence of who speaks first depends on the individual mediator’s style as well as the attorney’s preferences. Just remember, despite individual mediator/attorney styles, it’s important to make sure you also are able to speak in the joint session. This is your one opportunity to talk directly with your employer. The employer’s counsel, if one is present, will be sizing you up so it’s crucial that you look relaxed, speak slowly and calmly, and use as many “I” statements as possible. It also is important to be as logical as possible and if you are feeling angry, not to show it. I know this is not easy, but remember you want to be heard and speaking with these guidelines in mind, will increase the likelihood of accomplishing this goal.
The next stage of the mediation may allow for questions between the parties, but many mediators do not permit them for fear of losing control over the process. If you’re sounding reasonable, the mediator will be more likely to feel comfortable having you ask your employer a couple of questions. At this point the mediator’s style, and the employer and their counsel’s personality will also determine if questions will be allowed. Of course, you can ask the mediator any questions throughout the process.
Keep in mind you will be tempted during the mediation to prove your case, and may feel a strong desire to show your previous actions were right and the actions of your employer have been wrong. I know it will be hard to resist the temptation to do this, but it’s the best strategy for getting the employer to accept your proposals. At this stage, it’s more important to focus on the specific issues that led you to file an EEOC charge. Also, you may want to make some non-monetary requests at this point which can help the mediator strategize during the negotiation phase of the mediation. Keep in mind the employer is not obligated to make a monetary offer and may choose to only make a non-monetary proposal. Although this may seem ridiculous and grossly unfair this non-monetary offer may be worth considering.
The next stage of the process usually involves the parties separating into different rooms and is called caucusing. The mediator will shuttle between the parties and usually the employee initiates the opening proposal and the employer responds to that proposal. There are many other ways the mediation can proceed, but it works this way 90% of the time. It may be important to clarify at this stage whether the information you are telling the mediator will be kept confidential, or if the mediator has your permission to convey what he or she thinks might be helpful to the other party.
Let’s take a moment to talk about worst case scenario, namely that you don’t get offered “enough” by the employer. If you and the employer reach an impasse during mediation and you choose to go through the investigative process, you may want revenge and feel angry that your employer hasn’t offered you what you feel you deserve. All you can think at this point is, “I’ll show them. I’ll drag them through a seven month investigative process”. Of course, this is one of your legal options and although it might sound satisfying at the moment, it also will be a long haul for you. In addition to thinking about the case for the next seven months, you’ll be emotionally carrying it to the next job. However, if you’re still employed by this particular employer, these feelings may be hanging over you and although they can’t retaliate against you, you may feel in limbo until the investigation is completed.
Furthermore, I know you believe in your heart and mind that the discrimination can be proven, but the investigative process is incredibly rigorous and very few cases are decided in favor of the employee. For example, if you filed a charge alleging you were terminated due to your race, you will have to prove that other similarly situated employees of a different race were treated more favorable by the same decision-maker under similar circumstances. The employer is allowed to provide a legitimate non-discriminatory reason for its actions. The burden of proof then shifts back to you to show that the reason given by the employer is a pretext and that the real reason for the company’s actions is your race.
Also remember there are other incentives for you to continue trying to resolve the case in mediation rather than call an impasse too early: besides the fact that discrimination is difficult to prove, you need to consider not just the investigative process, but litigation. EEOC does not litigate very many cases (only about 1% of the cases nationwide), and even if it does, it will take 18 months to 3 years for litigation to run its course and there is always the possibility of losing.
Having said all of this, let’s continue with the process. If everything goes well after several hours of mediating, all parties will have agreed on the terms to resolve the charge. More often than not things don’t go smoothly and the parties may feel like an impasse has been reached. These feelings are common during a workplace mediation, so don’t despair. Try to think about your interests when it feels like you’re at an impasse. In other words ask yourself, “What are my overall goals”? For example, you feel you’ve been disrespected by your supervisor and so you want to change your working relationship. In this example, your overall goal would be to have your supervisor treat you more respectfully in the future. So you need to suggest some specific ways your supervisor could demonstrate respect for you and include these ideas in the negotiation process.
Creativity is especially invaluable in resolving disputes when it appears like an impasse has occurred. In one case I mediated the employee alleged gender discrimination and was on maternity leave, but planned to return to the company after the birth of her child. After mediating for a couple of hours we were at an impasse because most employers do not want to pay a current employee to resolve an EEOC charge. At this point in the mediation, I suggested the employer offer the employee an $800 gift certificate at a baby store. All parties agreed! It was a perfect win-win: the employee and the employer could celebrate this positive event and the employer didn’t have to write a check to the employee. Everyone walked away from the mediation smiling!
So let’s assume you’ve agreed on the terms for resolution. The next step is to sign a negotiated settlement agreement. Often the employer will come to the mediation with its own general release agreement to use in addition to the EEOC agreement. Although the agreement can be long and somewhat intimidating, most of the clauses in the agreement are standard. If you did not bring an attorney to the mediation it’s a good idea to have an attorney review this agreement prior to signing it. Most agreements include the following clauses: confidentiality, release of all claims, and “no admission of liability” on the part of the employer.
The most common question at this stage of the mediation is, “what if they retaliate against me when I go back to work”? As we both know retaliation is illegal but that doesn’t mean the employer never retaliates, or that you won’t feel you’ve been retaliated against for filing the initial charge. Of course if you continue to work for this same employer you have the right to file a new claim if you feel you are being discriminated against in the future.
At the risk of beating a dead horse, I would like to reiterate the importance of seriously considering trying to resolve these matters through mediation prior to filing an EEOC charge. However, if you have attended mediation and feel you are being retaliated against after the mediation has been completed when you return to work; you need to understand the elements of retaliation.
First of all, there needs to have been an adverse employment action taken against you. Just feeling criticized, even if it’s more than prior to the mediation, usually doesn’t qualify as an adverse action. It will have to be severe enough to pass the legal test, which is especially high. Secondly, the adverse action has to occur in proximity to the time you filed the initial charge. And finally, and this is the hardest element, you have to be able to draw a believable nexus between the alleged adverse action taken against you and your action of having filed the EEOC charge. The employer always has the opportunity to provide the EEOC with alternative explanations for what you are calling retaliation, and that’s often a huge hurdle to overcome in proving your case.
Well, now the mediation has come to a close, you’ve survived and either you’ll move onto the next job having learned many painful lessons, or will be returning to work for this employer. In the latter case, remember it will take time to put this behind you. Try not to be too reactive when you return to work, and remember everyone’s nervous about what has just transpired. If you feel upset by the way the employer is treating you after the mediation, make sure to take a few days to consider your next move before actually doing anything. It also might be a good idea to keep a diary of conversations and events that occur between you and your employer, if you haven’t already been doing this. If necessary meet with Human Resources after the mediation is completed if a problem arises. After any meeting with Human Resources it’s a good idea to send an email summarizing what was discussed, and also to keep a copy of any correspondence for your records. These suggestions are some ways to document your interactions, which can make you feel more protected, but hopefully you won’t’ need them.
Good luck, and remember whenever possible address the conflict sooner rather than later, and seek an outside neutral party before your concerns start to boil over and dirty the entire stove!