III. Profile of the Employers, Representatives, and Charges

Three sub-sections comprise this section on employer, representative, and charge profile. In the first sub-section, we present the employer profile in terms of type, size, and prior participation in the program. In the second sub-section, we present the profile of the representative who completed the survey in terms of their position in the company, their role in the mediation decision, and their prior history with the EEOC. The third sub-section presents the profile of the charges. After the presentation of the appropriate information, we also introduce the comparable EEOC data to demonstrate that our sample is representative of the population of charges that were filed before the EEOC during the relevant time frame.

A. Employer Profile

1. Employer Type and Employment Size

The vast majority of the employers (78.1%) are private sector employers. Eleven percent of them are state/local governments. Educational employers comprise of 6.5% of the participants. In terms of employment size, 35% of the employers are large (over 500 employees), 30% of them are small (under 101 employees) and 23.7% are medium sized employers (101-500 employers). This information is presented in Table V.

Table V
Employer Type and Employment Size

Table VI (below) presents the comparability between our sample and the overall population. As it shows, our sample is representative of the overall population with respect to respondent employer type and employment size.

Table VI
Comparison of Employer Type and Employment Size

2. Employer’s Prior Participation in the EEOC Mediation Program

In a study like this, it is important to find out about the prior history of the employers with respect to the EEOC and its programs. As illustrated in Table VII, 44% of the employers have not participated in the mediation program and 48% have participated in the program. Thirty-one percent of the employers have participated in the program one to five times while seventeen percent have participated in the program more than five times.

Table VII
Employer’s Prior Participation in the EEOC Mediation Program

B. Employer Representative Profile

1. Representative’s Position in the Organization

We asked the representatives completing the survey to identify their position in the organization. Most indicated that they were members of the management (32.1%), in-house counsel (22.4%), human resource representatives (11.1%), or owners (3.7%). Thus, 69.3% of the representatives were internal company personnel. Almost 27% were external legal counsel. This information is presented in Table VIII.

Table VIII
Representative’s Position in the Organization

* Equal Opportunity Officer/Investigator/Representative (6), Legal staff (2), Business Administrator (1), and Non-managerial Specialist (1)

2. Representative’s Role in the Mediation Decision

Table IX identifies the decision makers who decided not to participate in mediation and their role. We see that for the most part the decision to decline to participate in mediation is a group decision. It is clear that the internal company decision makers usually make the decision to decline mediation. In about a quarter of these decisions, the sole decision maker is in-house counsel. External counsel appear to contribute to the decision but do not make the decision by themselves.

Table IX
Representative’s Role in the Mediation Decision

3. Representative’s Prior History with the EEOC

Table X shows that the vast majority of the representatives have a prior history with the EEOC. Thirty-eight percent have appeared before the EEOC as an employer’s representative in more than 21 cases, whereas 24% have done so in one to five cases. In total, 82% of the participants have appeared before the EEOC as an employer’s representative. Thus, the representatives completing this survey are familiar with the Agency.

Table X
Representative’s Prior History with the EEOC:
Prior Appearance Before the EEOC as an Employer’s Representative

Table XI indicates that about 44% (43.7%) of the representatives had experienced an EEOC decision where there was reasonable cause to believe that the employer had violated the law. Fifty-two percent had not had such a notice issued against them. Table XII indicates that most of the participants (79.7%) had not been involved in an EEOC lawsuit.

Table XI
Representative’s Prior History with the EEOC:
Prior Issuance of “Notice of Reasonable Cause” Against a Client or Employer

Table XII
Representative’s Prior History with the EEOC:
Prior Litigations Involving the EEOC in Federal District Court

Table XIII indicates that a significant percentage of representatives (43.7%) had no prior experience with the EEOC mediation program. A little over fifty-four percent (54.4%) had participated in the EEOC mediation program in the past. Thus, over half of the representatives involved in the decision to decline had prior EEOC mediation program exposure.

Table XIII
Representative’s Prior History with the EEOC:
Prior Participation in the EEOC Mediation Program

C. Charge Profile

Table XIV sets forth the statute(s) involved in the charge, the basis or bases for the alleged discrimination, and the issue(s). Title VII is the statute that is applicable to the majority of the charges (71.9%), followed by the Age Discrimination in Employment Act (ADEA) (22.4%), and the Americans With Disabilities Act (ADA) (19.4%). The bases for the majority of the charges were race (36.4%) and gender (30.0%), followed by retaliation (25.9%), age (22.1%), and disability (18.6%). The majority of the charges were filed under the issues of discharge (62.2%) and terms and conditions of employment (19.9%). As shown in Table XV, our sample is representative of the profile of the population of EEOC charges for the same timeframe.

Table XIV
Charge Statute, Basis, and Issue

* Some charges involve multiple statutes, bases, and/or issues. As a result, the percentages under each category add up to more than 100%.

** Of this number, 34 (5.4% of the total) are constructive discharge cases.

Table XV
Comparison Charge Statute, Basis, and Issue

* Some charges involve multiple statutes, bases, and/or issues. As a result, the percentages under each category add up to more than 100%.

** Includes constructive discharge cases.

In summary, the data represents a cross-section of EEOC offices and types of charges. The employer representatives completing this survey were predominantly internal employees as opposed to external counsel or consultants. Most of the decisions about whether or not to participate in the mediation program were collective and internal to the organization. In making these decisions a large number of either companies or decision makers had experience with the EEOC. A noticeable percentage had experienced an adverse decision from the EEOC. Forty-four percent of the employers and an equal number of representatives have not participated in the EEOC mediation program.

From the above, we conclude that the decision makers are familiar with the EEOC and its processes. The EEOC’s action against over half of the respondents indicates that they understand what can happen if they have violated the law. Thus, overall the decision makers are informed, use group decision making to maximize the quality of the decision, and recognize the EEOC’s investigatory process. However, almost half of the employers and the persons who represented them in declining mediation have not been exposed to the actual operation of the mediation program.

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