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EEOC Broadens Mediation Opportunities to Complaining Parties

Beginning in July 2020, the U.S. Equal Employment Opportunity Commission (EEOC) will allow parties involved in charges of discrimination to elect mediation at any point in the proceedings. Before this change, parties would generally elect mediation at the time of filing a charge of discrimination or begin the investigatory process. Now, the parties can request mediation at any time during the charge process.

The change in policy is temporary for now, as part of a six-month pilot program. In addition to the timing, the EEOC has also expanded which charges are eligible for mediation so that essentially all charges are eligible. If EEOC management determines that a particular charge is not appropriate for mediation, they have the authority to exempt the charge. Mediation does not necessarily need to be held in person any longer as options for virtual mediations have also expanded. Investigators will participate in a mediation if the parties prefer it and in the EEOC’s discretion. If an investigator is present, then the proceedings may not be confidential. There are also minor changes being made to the conciliation process, with a new internal review process after the EEOC has found “cause” that discrimination has occurred.

These changes to the EEOC process are likely to make more disputes resolve at earlier stages and reduce litigation. It may also have a positive impact on the costs incurred by both sides of a dispute.