The EEOC has asked for public input so here goes:
Why is the EEOC operating the equivalent of a “get out of jail free card” for employers that engage in employment discrimination and retaliation?
When the EEOC determines there is reasonable cause for a charge of discrimination, the agency offers the employer (and the victim) the opportunity to participate in its free mediation program, where a neutral mediator assists the parties in reaching an early and confidential resolution to a charge of discrimination.
In its 2014 performance report, the EEOC contends the mediation program is a “win for both Employees and Employers” but in the final analysis it is a much bigger win for employers.
The EEOC says its mediation program for private sector complainants achieved a resolution in 7,846 out of a total of 10,221 mediations conducted for all types of discrimination. The effort yielded $144.6 million in monetary benefits for complainants. Simple division indicates the EEOC’s mediation effort yielded $18,430 per mediation for private sector workers in 2014.
A payout of less than $20,000 per mediation is a bona fide windfall for employers, who might otherwise be forced to spend a hundred thousands dollars or more to defend a lawsuit, plus a potentially staggering damages award.
But $20,000 is a pittance at best for many – if not most – victims of employment discrimination – especially those who lost their jobs or who were not hired because of illegal discrimination.
There’s the rub
The EEOC is not supposed to be in the business of protecting discriminatory employers from the reasonable consequences of their harmful actions.
Consider the plight of a 60-year-old black woman who is denied a job because of illegal discrimination. She has lost an annual salary for one or more years (depending upon whether and when she finds another job) plus a wide array of health and retirement benefits. She has suffered a severe psychological trauma. She may be forced to spend down her savings or take low-wage or temp work. She may be forced to endure poverty in her old age.
Twenty thousand dollars is arguably better than nothing but it is nowhere near just compensation for having suffered a serious wrong.
The EEOC’s primary mission is supposed to be to protect vulnerable workers from irrational and harmful employment discrimination based on race, sex, religion, color, national origin, genetic information, disability and age. In a world of incentives, the fear of exposure and punishment is a powerful incentive. Mediation, it seems, provides neither.
The EEOC must resist pressures to transform the agency into a service provider for discriminatory employers.
At the very least, the EEOC must insure that victims of discrimination and retaliation receive damages that reflect the injury they suffered. And just remuneration includes both monetary and compensatory damages (i.e. damages for emotional distress).
Mediation is never an equal playing field, even with a neutral mediator, if one side is represented by experienced counsel and the other has been traumatized and has no legal training, no money and no real access to the courts.
The EEOC must act to insure real justice and not just the appearance of justice.