IV. Results

This section on results is divided into the following sub-sections: information on charging parties, familiarity with the EEOC mediation program, internal investigation of the charges, specific reasons for the lack of participation in the mediation program, employer ratings of the EEOC mediation program and the EEOC as a whole, feedback from external attorneys and consultants, what the EEOC could have done differently to encourage employer participation, and general feedback for the Agency.

A. Information on Charging Parties

Employers were asked three questions about the charging parties that were pertinent to the study. The first question concerns the current employment status of the charging parties with the employer. As shown in Table XVI, 71% of the employers indicated that the charging parties were no longer with the organization due to termination or resignation. Twenty-two percent reported that the employment relationship is continuing. This is important to know as it is possible that the mediation decision is much different for existing employees versus terminated employees. As you will see in sections C and D the charging party’s employment status seems to influence employer actions in some instances.

Table XVI
Charging Party’s Current Employment Status With the Respondent

We inquired about charging party representation to analyze if an employer’s decision not to mediate was affected by it. In about 68% of the cases, employers did not have any knowledge of whether the charging party had any legal representation. Thus, for the most part, the decision whether to mediate or not was made by the employer without any consideration of the charging party’s legal representation. Most of the employers (80%) knew that the charging parties had no union representation. Table XVII presents this information about the charging party’s representation.⁹

Table XVII
Charging Party’s Representation Status

B. Familiarity with the EEOC Mediation Program

While our earlier questions to employers established their experience with the EEOC, including their past participation in the program, we wanted to probe this area in depth by asking a series of questions addressing their familiarity with the program. These questions were placed in the survey immediately prior to the questions concerning reasons for declining mediation. We wanted to explore the possibility that employers declined mediation because they were unfamiliar with the program.

Our first question asked whether or not the persons completing the survey (representatives) were familiar with the EEOC mediation program prior to declining mediation. As shown in Table XVIII, 81% reported that they were familiar with the EEOC program and only about 15% indicated that they were unfamiliar with the program. This suggests that employers who declined mediation are informed decision-makers. ¹⁰

Table XVIII
Representative’s Familiarity with the EEOC Mediation Program
(Prior to Declining to Participate in the Program)

Our second question asked those persons who were not familiar with the EEOC program whether or not they investigated the program prior to declining to participate. As shown in Table XIX, of the 94 representatives who belonged to this category, 33 (35.1%) investigated the program whereas the majority (60.6%) did not investigate the program.

Table XIX
Representative’s Efforts to Investigate the EEOC Mediation Program
(Among Those Who Are Not Familiar with the Program)

We asked representatives who did not investigate the EEOC mediation program prior to deciding not to participate in the program about the reasons for this decision. Their open-ended responses, coded and presented in Table XX, show that the two major reasons are charge-related (49.1%) and attitude related (views/unwillingness to compromise - 21.5%). A closer examination reveals that the perception of lack of the merit of the charge is the primary reason for the employer’s behavior.¹¹

Table XX
Reasons Cited for Not Investigating the EEOC Program Prior to Declining Mediation

* Note: Percentages add up to more than 100 as survey respondents can cite multiple reasons.

In summary, this data indicates that only about 9% of the employers who decline EEOC mediation do so without prior knowledge of the EEOC mediation program or without investigating the program. This is one indication that employers who decline mediation make informed decisions.

C. Internal Investigation of Charges

One of our important areas of inquiry is to examine whether employers conducted an internal investigation prior to declining mediation and, if they did, analyze the specific actions or tactics they utilized. From the discussion in the previous section, it is clear that most of the employers and/or their representatives have experience or are familiar with the EEOC. We consider them an “educated consumer” of the EEOC mediation program. We now consider the particular actions they undertook to investigate the charge. This is important because if an informed employer elects to decline mediation after an investigation of the charge, the decision to decline mediation is less a function of the EEOC program than it is the specific context of this particular EEOC charge.

1. Overall Analysis of the Actions Taken by the Respondents to Investigate the Charge

As shown in Table XXI, the vast majority of the employers (92%) reported that they conducted an internal investigation of the EEOC charge prior to declining mediation. They employed various tactics such as reviewing documents (87.2%), contacting other management employees (86.5%), contacting the charging parties’ supervisor(s) (79.2%), contacting non-management employees (51.3%), reviewing the charge with legal counsel (49.0%) and other investigatory activity. About 6.4% of the employers apparently did not investigate the charge prior to making the mediation decision.¹² This information is given in Table XXII.

Table XXI
Employer’s Internal Investigative History of the Charge
Prior to Declining Mediation

Table XXII
Actions Taken by the Organization to Investigate the Charge
Prior to Declining Mediation

2. The Influence of Other Variables on the Actions Taken to Investigate the Charge

We investigated whether certain characteristics of the charging party, respondent, and representative influence the specific actions or tactics that employers take in the investigation of the charge. These factors may directly influence the decision to decline mediation. In order to do this, we cross-tabulated the actions taken above with each of the following five variables: (a) the charging party’s current employment status; (b) the presence or absence of legal representation of the charging party; (c) prior experience of the organization with the EEOC program; (d) prior experience of its representative with the EEOC; and (e) the representative’s stated familiarity with the program. The questions posed are enumerated below.

1. Are employers more likely to take certain actions/tactics in investigating a charge depending on whether or not the charging party is still employed by the organization?

2. Are employers more likely to take certain actions/tactics in investigating a charge depending on whether or not the charging party has legal representation?

3. Are employers with experience in the EEOC mediation program more likely to take certain actions/tactics compared to those who have no prior experience in the program?

4. Is there evidence to suggest that the experience of the respondent’s representative influences the actions/tactics employed by the organization?

5. Is there evidence to suggest that the respondent representative’s familiarity with the mediation program influences the actions/tactics employed by the organization?

a. The Charging Party’s Employment Status

We previously reported that 25.6% of the employers spoke directly with the charging parties about the charge. When we cross-tabulate the actions taken to investigate the charge with current employment status, we find no substantial difference in their employer actions except for communication. Here we find that the charging party and respondent’s continuing relationship make personal contact/communication easier. Table XX shows employers spoke to the charging parties in 43% of the charges when they had a continuing employment relationship and in only 20% of the cases where there was no continuing relationship. Similarly, employers heard the charging party’s presentation during the grievance process in 23% of the charges when there was a continuing employment relationship and in only 12% of the charges where there was no continuing employment relationship.

Table XXIII
Actions Taken to Investigate the Charge:
Cross-tabulated by the Charging Party’s Employment Status

* Excludes those cases where no information is provided.

b. The Charging Party’s Legal Representation

We also cross-tabulated actions taken by the employer to investigate the charge with the presence of a charging party’s legal representative.¹³ As Table XXIV shows, there are no marked differences in some of the actions taken by respondents when the charging party has legal representation compared to when the charging party has none. Results show that majority of respondents review documents (93.4% vs. 89.7%), speak to other members of management (88.2% vs. 91.8%), and speak to the charging party’s supervisor (76.3% vs. 80.4%). Thus, these are basic actions that appear to be taken without regard to charging party representation.

However, employers facing charging parties with legal representation are more likely to take “legally-related” actions. When the charging parties are represented by legal counsel, a comparatively greater proportion of respondents review the charge with the company attorney (53.9% vs. 40.2%) and research the law (59.2% vs. 30.9%).

Table XXIV
Actions Taken to Investigate the Charge:
Cross-tabulated by the Charging Party’s Legal Representation

* Excludes those cases where no information is provided.

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

Do actions taken by employers differ based on their prior participation in the EEOC mediation program? In order to answer this question, we cross-tabulated actions taken by the employer to investigate the charge with the employer’s prior participation in the EEOC mediation program. This is important information because on the issue of prior EEOC mediation experience we have an almost fifty/fifty split in our employer responses. As Table XXV shows, for many of the employer actions, their prior participation did not make any noteworthy difference. Regardless of prior participation history, employers engaged in more or less similar actions, such as document review, consultation with other management employees, legal research, and review with the company attorney.

Table XXV
Actions Taken to Investigate the Charge:
Cross-tabulated by the Employer’s Prior Participation in the EEOC Mediation Program

* Excludes those cases where no information is provided.

d. Representative’s Prior Participation in the EEOC Mediation Program

Realizing that the prior experience of the respondent’s representative may also play a role in the actions that respondents take, we also cross-tabulated the actions taken by the respondents with the representative’s prior experience. Once again, we have almost a fifty/fifty split between those with experience and those without. As Table XXVI shows, the results are very similar to the ones that were found in the previous paragraph. The only noteworthy difference is that respondents whose representatives have had prior experience with the EEOC mediation program are more likely to speak with the charging party’s supervisor (84% versus 74%) compared to those with representatives without prior experience with the program.

Table XXVI
Actions Taken to Investigate the Charge:
Cross-tabulated by the Representative’s Prior Participation in the EEOC Mediation Program

* Excludes those cases where no information is provided.

e. Representative’s Familiarity with the EEOC Mediation Program

Another cross-tabulation was done to examine whether actions taken to investigate the charge varied according to the representative’s familiarity with the EEOC mediation program. We found that respondents with representatives who are familiar with the program engaged in more direct action/communication with the persons directly and indirectly involved in the charge. Employers with representatives that are familiar with the program are more likely to speak to management employees (87.2% vs. 80.2%), the charging party’s supervisor (80.9% vs. 70.4%) and the charging parties themselves (27.5% s. 16%). In addition to direct communication, the same employers are more likely to collect statements from all parties involved (40.8% vs. 29.6%) and research the law (38.4% vs. 28.4%). We surmise that experience with the EEOC program is also a proxy for professional skills. In other words, persons who have prior exposure to the mediation program are probably better versed in employment discrimination law. This experience, in turn, leads them to take these investigative steps in a higher percentage of cases than those without familiarity with the EEOC mediation program. These results are shown in Table XXVII.

Table XXVII
Actions Taken to Investigate the Charge:
Cross-tabulated by the Representative’s Familiarity with the EEOC Mediation Program

* Excludes those cases where no information is provided.

In summary, most of the employers investigated the EEOC charge internally prior to declining to participate in the EEOC mediation program. They employed a wide variety of actions/tactics for their internal investigation — at least eight out of every ten employers review documents, speak to management employees, and speak to the charging party’s supervisor. These employer actions, to some extent, varied according to charging party’s legal representation and the employer representative’s familiarity with the mediation program.

We mentioned that we consider the employers who decline mediation as “informed consumers” about the EEOC “product” based on their prior experience and familiarity with the program. The analysis above further suggests that the employers who declined mediation are potentially well informed on the specifics of the case—they presumably have gathered adequate information about the charge prior to declining mediation. We see that decisions to decline to participate in the EEOC mediation program are well informed and specific to the charge before the Agency.

D. Specific Reasons for the Lack of Participation in the EEOC Mediation Program

This section presents the specific reasons given by employers for declining the EEOC offer to mediate. Since this section is at the heart of this research, care was taken to ensure that we captured employers’ sentiments as completely and accurately as possible. Hence, a three-prong strategy was used. We sought to identify the reasons and to also measure the intensity/magnitude of their feelings. First, we gave as many reasons as possible in a close-ended manner so that employers could pick from them. These 16 statements, which dealt with possible reasons for not participating in the mediation program, were culled from the dispute resolution literature and from the research team’s experiences.¹⁴

The second prong was to measure the importance employers attached to each of the factors they identified. This was done through a rating system that asked them to quantify the importance of each factor they identified using a three- point scale where “one” equaled below average importance, “two” equaled average importance, and “three” equaled above average importance. The third prong was to capture employer sentiments that went beyond the scope of the closed-scale measurement. We used an open-ended format to do this where employers could identify “other factors” not captured in the 16 close-ended statements.

This section is divided into three subsections. The first subsection presents a general view of the overall results. Both close-ended and open-ended results are presented here in a summary format. The second subsection is more interpretive. It interprets the findings by combining the data with some “verbatim” responses. The third subsection portrays the cross-tabulations.

1. Reasons for Declining the Offer to Mediate

In order to find out the reasons for electing not to participate in the EEOC mediation program, employers were given a list of 16 close-ended statements and were requested to pick ALL the applicable reasons pertaining to their charges. In addition to these statements, there was an open-ended opportunity for them to record “other responses” as well. From the list of close-ended statements, employers, on the average, selected more than three reasons for their refusal to participate. The average number of reasons the employers chose was 3.3. Almost all identify the perceived lack of case merit and two other reasons from the list of 16 statements. Table XXVIII provides the percentage response.

Table XXVIII
Reasons Cited for Declining to Participate in the EEOC Mediation Program

* This statement was added later to the questionnaire. The percentages are computed based on the total number of employers who received the updated questionnaires, i.e., those that were presented this option along with the other statements. Total percentages add up to more than 100 as employers could indicate multiple responses.

Table XXIX provides the importance rating for these various responses:

Table XXIX
The Importance Rating of Each Reason Cited for Declining to Participate in the EEOC Mediation Program

* Percentages add up to 100% for each reason cited.

** Based on a 3-point scale: 1 – Below Average Importance, 2 – Average Importance, 3 – Above Average Importance

*** This statement was added later to the questionnaire. The percentages and averages are computed based on the total number of employers who received the updated questionnaires, i.e., those that were presented this option along with the other statements.

When considering the percentage response and the importance rating we find that the number one reason for employers to decline to participate in the EEOC mediation program was that they perceived that the merits of the EEOC charge did not warrant mediation. This was the reason in an overwhelming majority of the cases (93.8%); the strength/importance score of 2.89 (out of a possible 3) indicates that the participants almost always chose this reason as very important to their decision to decline to participate in the mediation program.

In 57.4% of the cases, participants chose “the low likelihood of the EEOC issuance of a “Reasonable Cause” determination” as the reason for their refusal. The average importance score of 2.48 indicates that the participants considered this factor to be important in their decision. This measure was similar to the merits measure above but also contemplates that the employer considered whether the EEOC would take action.

The “belief that the EEOC mediation program requires monetary settlement” is the third most recurrent reason for declining mediation. This is the only other reason cited by at least half of the employers (50.2% cited this reason). Its importance score of 2.34 suggests the relative value employers place on this factor.

The other responses lag significantly behind these top three reasons. The fourth most prevalent reason (“it is less expensive to present a position statement”) is mentioned by only a little over a quarter (25.9%) of the respondents. Many of the 16 statements that we presented as possible reasons were identified in less than 15 percent of the cases.

In addition to the percentage rating and the importance rating of these responses we also performed a content analysis of the open-ended responses. This analysis establishes that many of them pertained to the reasons that were already listed in the close-ended section. In fact, 71 responses (11% of the overall) were repeats, which indicate the following: (1) Many of these reasons were captured in our close-ended section; and (2) Many of the employers felt so strongly about their positions that they not only checked the close-ended section, but also wrote down comments. It is revealing that the vast majority of the repeated responses (57 of 71 = 80%) pertain to two reasons: merits of the case do not warrant mediation (39 of 71 = 55%) and belief that the EEOC requires monetary settlement and unwillingness to offer money in this case (18 of 71 = 25%).

There were also other factors cited, which are independent of the close-ended choices, for declining to participate in the mediation program. However, they form a small percentage of the overall total (11%), once again indicating that the close-ended section was comprehensive. Please refer to Appendix D for the full spectrum of responses. Table XXX presents the summary of the contents of all open-ended responses.

Table XXX
Other Factors Cited for Declining to Participate in the EEOC Mediation Program

2. Detailed/Specific Analysis of the Reasons for Declining the Offer to Mediate

The section above presents a general discussion of the reasons cited for declining mediation. The following section provides a detailed analysis of those reasons, integrating specifics on the IMPORTANCE placed on each reason and a sampling of the verbatim comments made by the employers . As was mentioned earlier, a content analysis of the open-ended responses revealed that many of them pertained to the reasons that were already listed in the close-ended section.

a. Reason one: Merits of the case do not warrant mediation and low likelihood of “reasonable cause” finding

Practically all the employers identify Lack of Merit as a factor in their decision to decline mediation. The weight placed by employers on this reason is affirmed by the relative importance that employers attribute to this reason—90% of these employers consider it of “above average” importance.

Comparing the top two reasons, employers show stronger opinion on the relative importance of the merits (or lack thereof) of the case compared to the low likelihood of the EEOC issuing a “reasonable cause” finding. Fifty-seven percent of all respondents think that the EEOC is unlikely to issue “reasonable cause” finding and 58% of these respondents consider it of “above average” importance.

These findings suggest that for almost all employers who decline mediation, the perceived specifics of the case are the overriding consideration in their decision.

A sampling of employer comments reveals some interesting insights into their thinking and motivation in declining mediation. They have obviously reviewed the charge brought against them and have expressed their conviction by referring to the strength of their case and the documentation supporting their decision. Some of their actual comments are presented below.

“ … we have a strong case as an employer.”

“Much documentation support[s] our position to terminate this employee.”

“Charge lacked any facts supporting the allegations … party has no clue about the strength/weakness of their case.”

Some comments convey the exasperation on the part of the employers who see the charge as a harassment tactic and consider the EEOC as a medium for employee retaliation. A number of responses from the employers (See Section IV.H.) relate to perception that EEOC should do a better job of screening out claims that are without merit and dismissing unworthy cases.

“Most claims are based upon individual’s retaliation against company for disciplinary action on decision employee does not like. I do not see any reason to mediate such a case.”

“[E]ntering the mediation process is tantamount to making a concession of some sorts. Some cases do not lend themselves to a concession—especially if the employer sees the EEOC charge as a harassment tactic by the employee …”

Some comments suggest that the employers’ decision to decline mediation may be related to their desire to discourage future charges.

“Most charges have no merit. We would rather send the message that we will respond and fight.”

“Offering a compromise to a meritless case only encourages more meritless cases.”

b. Reason Two: Mediation requires monetary settlement

The employers find this reason especially important—eight out of ten consider this of average or above average importance in their decision. Some suggest a reluctance to pay any monetary settlement to the specific charging party; others express their sentiments that a monetary settlement is being forced upon them; and others regret the lack of alternative (non-financial) settlement options.

“Any settlement will involve a monetary payment of some type and employer does not feel charging party is entitled to any payment.”

“The merits of the case do not warrant mediation - agreeing to mediate will suggest to the charging party that the company is willing to pay money to her to resolve her claim. This is not the case when the company did not act illegally or inappropriately.”

“Employer is unwilling to pay anything to the charging party to settle the charge; employer does not believe that mediation will be successful in achieving a settlement without making monetary payment to the charging party. Employer does not wish to make monetary offer to the charging party; employer perceives that mediator will counsel the employer to make settlement offer.”

Some employers complain about the pressure that they feel is put upon them by the EEOC mediators. Some of the comments below suggest that these employers have had previous experience with the mediation program.

“Do not feel I could go to mediation without the EEOC mediators expecting a monetary settlement for this meritless charge.”

“Charging party and/or EEOC mediator think that money should be put on the table in order to settle a charge of discrimination.”

“Both counsel and EEOC representative indicated that mediation would result in some level of payment to plaintiff. We have done nothing wrong and any payment to our former employee would be wrong.”

“Sometimes the claimant will only accept a monetary resolution and the mediator is not successful in getting them to consider alternative resolutions.”

Some employers attribute the pressure of financial settlement as coming from the charging party’s legal representation.

“Unwillingness of charging party's attorney to mediate without probability of financial settlement … was determinative in decision not to mediate.”

c. Reason Three: It is less expensive to prepare a position paper

A number of employers opined that it would be more cost-effective for them to prepare a position paper rather than to mediate.¹⁵ Unlike the previous statements, the importance placed on cost consideration is not as strong. Almost half (44%) believe this to be of average importance, the rest are equally divided among those who believe that this is of below average importance (28%) and those who believe that this is of above average importance (28%). This cost consideration may very well be a part of the employers’ “wait and see” strategy in the hope that the employee loses interest in a lengthy investigative process.

“It's easier to submit a position statement and see if a suit follows … After the EEOC processes the charge many employees will not file suit either because they lose interest or get a wake-up call from an attorney who explains that the suit is worthless …”

d. Reason Four: Concern that accepting mediation sets a precedent among other employees

Some employers (18%) worry about the possibility that mediating a charge sets a precedent among other employees. On the other hand, this concern is tempered by the relative importance placed on this reason: only 19% consider this to be of above average importance, 38% of average importance, and almost half (43%) consider this factor of “below average” importance.

A couple of the comments cited earlier (concerning the lack of merit of the case) echo their concern about possible future charges. These comments are reproduced below.

“Most charges have no merit. We would rather send the message that we will respond and fight.”

“Offering a compromise to a meritless case only encourages more meritless cases.”

e. Reason Five: Advice of respondent’s counsel

As a percentage of the total number of employers, only 17% attribute their legal counsel’s advice as a reason for declining mediation. Since this percentage is dependent on the number of employers who actually availed the services of a lawyer, the importance of this reason is likely understated by the 17% figure.¹⁶

Another reason to suggest the importance of the presence of legal advice is shown by a comparison of the proportion of members of management and owners/CEO’s who attribute this reason for their decision. The table below presents the proportion of participants who followed counsel’s advice based on their current position in the organization. One in five (21%) members of management picked this reason and almost double that proportion (39%) of owners and CEOs do the same.

Table XXXI
The Representative’s Inclination to Follow the Advice of Legal Counsel:
Tabulated by the Representative’s Position in the Organization

* Percentages are computed based on the number of representatives holding a particular position in the organization.

Moreover, where employers heeded the advice of counsel, a majority of them (three in four) consider this factor as being of “average or above average” importance—the value that they place on the counsel’s advice is clearly great.

Another interesting result is observed when comparing the responses of the employers or representatives who had prior experience with the mediation program against those without any prior experience. The percentage of respondents declining mediation on the advice of their lawyer is substantially higher when the organization or the organization’s representative had not had prior experience with the EEOC mediation program or the representative is not familiar with the program.

f. Reason Six: Reputation of CP’s legal counsel

The reputation of the charging party’s lawyer or other representatives does not seem crucial in the employers’ decision to decline mediation. This reason was given a few times (8%) and rated below average in importance (1.58). The comments provided by a few employers tend to concentrate on the unreasonably high expectations and the aggressive behavior of the charging party’s lawyer.

“Employee's attorneys are often too aggressive and demanding.”

“[The lawyer] just wants to get the "EEOC thing" over with and get into federal court where he can squeeze a settlement out of us. And by the way, his client will gain just about nothing because the attorney will collect a contingency fee, plus attorney's fees, which will take the majority of the settlement proceeds. In sum, mediation did not fit into this plaintiff's attorney's plan, so it's not happening.”

“Typically, expectations of charging party and/or charging party's attorney are not realistic based on the merits of the charge.”

“Charging party's attorney's expectations too high. He over-valued [the] case.”

g. Reason Seven: Unproductive prior experience with the EEOC (mediation program, investigative process, and the EEOC in general)

Eighteen percent (112 out of 629) of the employers mentioned unproductive prior experience with the EEOC: 15% had unproductive experience with the mediation program, 10% with the EEOC in general, and 8% with the EEOC investigative program. The importance placed on each of these statements is not very strong. On the average, about half of the employers who cited these reasons consider them to be of below average importance: 40% among those who had an unproductive prior experience with the EEOC mediation program, 49% among those who had unproductive prior experience with the EEOC in general, and 53% among those who had unproductive prior experience with the EEOC investigative program.

The few comments mentioned relate to the perceived bias of the EEOC in favor of employees and against employers.

“EEOC is an advocate for the complainant. They do not engage as objective third parties.”

“General impression that EEOC is biased against employers …”

“My 25+ years experience in working with the EEOC (as an employer's H.R. director) has not been positive. An employer is guilty until we (the employer) prove ourselves innocent… The exact opposite of what I've always believed the judicial system should be.”

h. Reason Eight: Unwillingness to deal with the charging party

The proportion of employers who expressed unwillingness to deal with the charging party as a reason for declining mediation is relatively low. Moreover, over half of the employers (58%) consider this reason of below average importance. Only a quarter of those choosing this reason gave it an above average importance. The additional comments indicate that the charging party’s attitude and behavior (especially lack of “good faith” effort) is an important consideration in their decision.

“We had no interest in mediating due to motive of charging party's behavior during and after termination.”

“Conclusion that the charging party likely would not settle or participate in the process in good faith.”

“[In a prior complaint] the complainant was hostile, delinquent, and unwilling to participate in good faith.”

In a related matter, a few employers commented that their decision to decline mediation was affected by their lack of desire for continued relationship with the charging party.

“We had and expect no on-going relationship with the charging party.”

“Long record/history of working with this particular employee. Unable to come to closure on issues with this employee.”

i. Reason Nine: Not enough time to consider mediation

Some employers (10.5%) point to the timing of when they have to inform the EEOC of their acceptance or refusal of the mediation offer. Some expressed their frustration that the period between receiving the offer to mediate and their decision to mediate does not allow ample time for them to conduct their own internal investigation. In the sampling of responses below, a number have suggested that the deadline to mediate should be made more flexible.

“By the time I get the charge, the time to elect mediation has usually passed. Mediation should be allowed at [different] phases of charge.”

“Insufficient opportunity to fully investigate underlying facts due to mediation deadlines.”

“I seriously thought about mediation in this case, but the deadline for deciding did not permit enough time to adequately investigate. EEOC should not set such a short time frame to make the election.”

“Typically employers are required to decide on mediation too early in the process.”

j. Reason Ten: Prefer internal/organization’s resolution processes

Two alternatives to EEOC mediation were included in the list of reasons provided for the employers to choose from: use of the union-management grievance process and use of the company-employee resolution process. A total of 11% (68 of the 629 participants) elected one or both of these reasons: 9% prefer to deal with the charge through the company-employee resolution process and 6% through the union-management grievance process. Closer inspection on the intensity of their reason for choosing this suggests that the majority do not see either of these options as of above average importance in their decision.

The choice of either or both of these selections presupposes the existence of a formal grievance or resolution process in the company. We examined whether the existence of such programs was related to the size of the employer. Among employers who chose one or both of these reasons, almost half (49%) of these companies have at least 500 employees, 25% have 101 to 500 employees, while 23% have 15 to 100 employees.

An important insight offered through the written comments involves the perception of a few employers that the presence of the EEOC mediation program might actually “encourage” some employees to bypass normal company procedures. Additionally, one respondent commented that agreeing to mediation would be “detrimental” to the procedure that they have currently in place.

“With existing employees who, like this one, avoid normal company procedures to use the EEOC, mediation inflates their use of importance and encourages them to continue to avoid normal management - employee conversations and dispute resolution.”

“Existence of comprehensive internal grievance system makes mediation less needed/effective. Nature of allegations not well suited to resolution by mediation. As a state agency, we have very limited authority to make offers of settlement.”

“Typically, employee issues receive a great deal of review by this office with management on how to proceed. This consultation with the local management would be viewed as counter productive, in most cases, if mediation was engaged.”

k. Reason 11: Lack of familiarity and confidence in mediation and/or in the EEOC mediation/investigation

The results suggest that these reasons are not “crucial” in the overall analysis of the possible reasons for declining mediation: only 9% attribute lack of familiarity with the program as a reason for declining mediation and almost equal proportions point out their belief that EEOC will not fully investigate the case (9%) and the fact that they do not believe in mediation (8%) as reasons for declining mediation. While these numbers are not trivial, the relative importance attributed to each of these statements is very low. The majority considers each one of these reasons as being of below average importance: 60% among those who lack familiarity with the program, 57% among those who believe that EEOC will not investigate fully, and 72% among those who do not believe in mediation.

l. Other reasons cited

Open-ended comments were solicited from the employers. As mentioned earlier, a number of responses simply reiterated their selection from the closed-ended portion and the rest have very few mentions. We reproduce some of the comments here as they also add valuable insights into the employers ’ decision-making process.

Most of these comments clearly emphasize that their current posture is specific to a particular charge and is not a general sentiment regarding mediation.

“Mediation works only when the parties are willing to consider moving off their position. In this case, the employer … did not desire to move off its decision. Accordingly, mediation was declined.”

“Mediation assumes that some level of agreement can be reached on a valid point of concern. Research indicates complaint is not valid. No room for agreement or disagreements.”

“I do not mediate where I am not willing to meet (somewhere) in the middle."

Some employers also expressed the distance to the mediation site as important in their decision to decline mediation. We mention this here as a few other employers have suggested the use of telephone mediation (and perhaps other technology-friendly media) as an alternative to face-to-face mediation.

“Time and expense of attorney and management representatives to travel to Chicago for mediation.”

“Distance to mediation site. No suitable (local) employer representative.”

3. The Influence of Other Variables on the Reasons Cited for Declining the Offer to Mediate

As was done in the section on “Actions Taken to Investigate the Charge,” we cross-tabulated reasons cited for declining to participate in the EEOC mediation program with charging party’s employment status, legal representation, employers’ prior participation in the EEOC mediation program, employers’/employer representatives’ prior participation in the program, and participants’ familiarity with the program.

a. Charging Party’s Employment Status¹⁷

With respect to charging party’s employment status, we found that employers were more likely to give the following reasons when the employment relationship has been severed: belief that the EEOC mediation program requires monetary settlement and unwillingness to offer any money in this case (51.8% vs. 44.9%), belief that it is less expensive to present a position statement than to mediate (30.0% vs. 18.4%), lawyer advised against mediation (18.6% vs. 11.8%), and unwillingness to deal with the charging party in person (16.6% vs. 11.0%). Among those mentioned above, the respondent’s belief that it is less expensive to present a position statement has the largest percentage difference. It should be noted that the number one reason, Merits of the Case Do Not Warrant Mediation, did not change regardless of charging parties’ employment status. In both cases, it was over 93%! Table XXXII presents this information.

Table XXXII
Reasons Cited for Declining to Participate in the EEOC Mediation Program:
Cross-tabulated by the Charging Party’s Employment Status

* Excludes those cases where no information is provided.

** This statement was added later to the questionnaire. The percentages are computed based on the total number of employers who received the updated questionnaires, i.e., those that were presented this option along with the other statements.

b. Charging Party’s Legal Representation

It seems that the reasons cited for declining to participate in the EEOC mediation program varied with charging party’s legal representation. As Table XXXIII shows, in many cases there is a marked difference depending upon legal representation.

The differences observed in the cross-tabulation of reasons cited vis-à-vis the presence or absence of legal counsel result in several interesting findings. The one reason that exhibits the largest percentage difference relates to “reasonable cause” determination. Comparatively more employers involved in charges where the charging party has no legal representation believe that there is a low likelihood of an issuance of “reasonable cause” (66.4% vs. 55.6%). Similarly, the employer is more likely to report that the merits of the case do not warrant mediation. Also, the employer has more of an issue with the fact that the EEOC mediation program is perceived as requiring the payment of some money when the employee is not represented by counsel. One explanation may be that the fact that counsel represents the employee signals that the case has merit because it has presumably been screened by counsel prior to agreement to take the case. What we cannot ascertain is whether or not the represented employee does, in fact, have any better case than the unrepresented employee. Nevertheless, the employer still elects to decline mediation.

Some of these cases may be a subsection of cases that go against the grain of the rest of the cases in this study in that employers apparently recognize some exposure but nevertheless still decline to mediate. Almost 89% of the employers still claim that the merits of the case do not warrant mediation.

Table XXXIII
Reasons Cited for Declining to Participate in the EEOC Mediation Program:
Cross-tabulated by the Charging Party’s Legal Representation

* Excludes those cases where no information is provided.

** This statement was added later to the questionnaire. The percentages are computed based on the total number of employers who received the updated questionnaires, i.e., those that were presented this option along with the other statements.

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

The employers’ prior participation in the EEOC mediation program does not seem to influence the reasons cited for declining to participate in the EEOC mediation program in some instances. As Table XXXIV shows, the patterns in the response do not differ substantially except those that refer to unproductive prior experiences with the EEOC. In this regard, almost one out of four employers with prior experience with the program (24% of 301) point to their unproductive experience as a reason for declining mediation. On the other hand, this means that three out of the four employers with prior experience did not cite their unproductive experiences as a reason for declining mediation.

Table XXXIV
Reasons Cited for Declining to Participate in the EEOC Mediation Program:
Cross-tabulated by the Employer’s Prior
Participation in the EEOC Mediation Program

* Excludes those cases where no information is provided.

** This statement was added later to the questionnaire. The percentages are computed based on the total number of employers who received the updated questionnaires, i.e., those that were presented this option along with the other statements.

From our prior research we know that overall, employers and charging parties overwhelmingly indicated that they were satisfied with the procedural due process elements of the EEOC mediation and an overwhelming majority indicated that they would use the program again.¹⁸ Thus, we now scrutinize the influence of the prior unproductive experience on the decision to decline mediation. We analyzed the responses of the 72 employers who cited their unproductive prior experience as reason for declining mediation and found that almost all of them (68 out of 72) also cited Merit as a reason for declining mediation. Only four out of the 72 did not do so. This suggests the possibility that the merit of the case overrides the negative prior experience. In order to investigate this, we analyzed the degree of importance placed by these representatives on the two reasons. Two different analyses lead us to the same conclusion about the importance of merit: (a) an analysis of the frequency distributions and the resulting average ratings of the two reasons and (b) a case-by-case comparison of the difference in the importance respondents placed on each reason.

Table XXIV.A shows that among these 72 employers, an overwhelming majority (79.2%) considers the merits of the case as of above average importance in their decision to decline mediation. In contrast, they are more ambivalent regarding the importance attached to their prior experience: 37.5% considered their unproductive prior experience as having above average importance, 27.8% as having average importance, and more than one-third (34.7%) as having below average importance.

The resulting computed average ratings reiterate the above finding. Merits of the Case has a 2.84 average rating which is close to an “Above Average Importance” rating. On the other hand, Prior Experience has a 2.03 average rating which is equal to an “Average Importance” rating.

Table XXXIV.A
An Analysis of the Importance Placed by Employers on Merit and
Prior Experience as Reasons for Declining Mediation
(Among Employers Who Cited Merit and Unproductive
Prior Experience as Reasons for Declining Mediation)

A second set of tabulations also demonstrates the relative importance of the merits of the case over the representative’s prior experience. Here we looked at each case/charge and tallied how many employers rated Merit of the Case lower than, equal to, or higher than Prior Experience. This is an even more direct comparison because the comparison is made individually—we are measuring how each employer feels about the relative importance of these two reasons. The tabulation shows that almost 60% consider Merit more important than Prior Experience and almost one-third (32.8%) rate Merit at least as important as Prior Experience. Only 9% considered their unproductive prior experience as more important than the merit of the case.

Table XXXIV.B
A Comparison of the Importance Placed by Employers on Merit and
Prior Experience as Reasons for Declining Mediation
(Among Employers Who Cited Merit and Unproductive Prior
Experience as Reasons for Declining Mediation)

Thus it is safe to conclude that even among those who cited their unproductive prior experiences with the EEOC mediation program as one of the reasons for declining to participate in the program, the main reason for declining mediation was the perceived lack of merit of the case. Appendix G summarizes the comments of employers with prior unproductive experiences with the program. This list was compiled from the three main open-ended questions (reasons for declining mediation, other actions the EEOC could have taken for them to mediate the charge, and general feedback).

d. Representatives’ Prior Participation in the EEOC Mediation Program

As in the previous section, a substantial number with experience in the program pointed to their unfavorable experience as a reason for declining mediation. Not surprisingly, participants without prior experience were more likely to rely on their lawyer’s advice regarding the matter (21.1% vs. 12.9%). Please note that the number one reasons, The Merits of the Case Do Not Warrant Mediation, remained the same regardless of representatives’ prior participation history.

Table XXXV
Reasons Cited for Declining to Participate in the EEOC Mediation Program:
Cross-tabulated by the Representative’s Prior
Participation in the EEOC Mediation Program

* Excludes those cases where no information is provided.

** This statement was added later to the questionnaire. The percentages are computed based on the total number of employers who received the updated questionnaires, i.e., those that were presented this option along with the other statements.

e. Representative’s Familiarity with the Program

In some instances, the employer representatives’ familiarity with the EEOC mediation program influenced the reasons cited for declining to participate in the EEOC mediation program. As Table XXXVI shows, participants who were unfamiliar with the EEOC mediation program were more likely than those who were familiar with the program to give the following reasons: belief that the EEOC mediation program requires monetary settlement and unwillingness to offer any money in this case (60.0% vs. 49.7%), belief that it is less expensive to present a position statement than to mediate (33.0% vs. 24.5%), their lawyer advised against mediation (26.6% vs. 15.1%), and their unwillingness to deal with the charging party in person (18.1% vs. 13.7%).¹⁹

The merits of the case are still the most important reason for declining mediation. Compared to the proportion of employers who mentioned the other reasons, only 21.3% of employers with representatives unfamiliar with the program attribute their lack of familiarity with the program as reason for declining mediation.

Table XXXVI
Reasons Cited for Declining to Participate in the EEOC Mediation Program:
Cross-tabulated by Representative’s Familiarity
with the EEOC Mediation Program

* Excludes those cases where no information is provided.

** This statement was added later to the questionnaire. The percentages are computed based on the total number of employers who received the updated questionnaires, i.e., those that were presented this option along with the other statements.

In summary, most of the participants indicated that the lack of merit of the case was the primary reason that they declined mediation. Only a handful declined mediation because they were unfamiliar with the mediation program, they did not believe in mediation, or had unproductive experiences with the EEOC. Cross-tabulations showed that the employer reasons for declining mediation varied, to some extent, based on factors such as prior history and familiarity with the program. It should be noted that the number one employer reason, the lack of merit of the case (“merits of the case do not warrant mediation”), remained the same, regardless of “other factors.” This again shows the relevance of this particular variable to the employer decision not to mediate.

E. Participants’ Ratings of the EEOC Mediation Program and the EEOC as a Whole

As cognitive psychologists would attest, perceptions play an important role in how we feel about people, things, and programs. In order to evaluate whether participants’ overall sentiments and perceptions about the mediation program and the EEOC in general, we asked six questions. These questions measured not only their perceptions based on their own experience, but also based on the experiences of others. Two factors prompted us to do this. One, as the social learning theory suggests, we learn from the experiences of others. Two, social desirability might prompt people to provide what they deem to be acceptable answers as opposed to their real answers. Thus, we asked their opinions based on other people’s experiences in an attempt to lessen the social desirability factor.

Since these questions measure attitudes and perceptions, a five-point Likert scale was used with the points ranging from strongly disagree (1) to strongly agree (5). The results indicate that the participants’ perceptions of the EEOC are rather neutral. The results indicate that most employers, when offered the chance to criticize the EEOC, did not do so. The other interesting result is that the employers’ attitudes towards the mediation program were less critical than those for the overall agency. This hints that for some who have overall “issues” with the effectiveness of the EEOC, about half do not have an issue regarding the effectiveness of the mediation program. These findings are given in Table XXXVII.

Table XXXVII
Representative’s Ratings of the EEOC Mediation Program and the EEOC as a Whole

* Five point Likert scale: SD – Strongly Disagree, D – Disagree, N – Neither Agree nor Disagree, A – Agree, SA – Strongly Agree

** Based on a five-point Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

F. Feedback From External Attorneys and Consultants

External attorneys and consultants were asked some specific questions about some special considerations, such as fee maximization behavior and lack of mediation skills, which might influence their attitudes towards mediation. These measures were important since we recognize that many times persons external to the organization can influence the decision whether to participate in mediation.

Since we were measuring attitudes, we used a five-point Likert scale, ranging from strongly disagree (1) to strongly agree (5) to measure their feedback. About 58% (57.8%) of the participants agreed or strongly agreed that they would sometimes decline to mediate at the EEOC, but would later engage in private mediation on the charge or lawsuit arising from the charge. The mean rating was 3.40 indicating some agreement with the statement about private mediation.

This finding is important as it indicates that mediation is acceptable to a substantial percentage of employers who elect to decline EEOC mediation. Thus, it is the timing of the mediation that causes a represented employer to decline at the onset of the EEOC process. If the EEOC is interested in having these employers participate in mediation then they should consider offering mediation at later points in the process. An employer commented to this effect.

Another conclusion from this response is that represented employers are willing to pay for mediation outside of the auspices of the EEOC at a later point in the process where they are initially declining the free services of the EEOC. This indicates that for some cases there is an economic value to the employer in participating in mediation.

We also tried to get an understanding of the role of lawyer billing on the decision to mediate. Eighty one percent did not make the mediation decision based on the client’s capability to pay legal fees. When we asked these representatives about what other attorneys did, they were not so sure how others made the decision to mediate. About one quarter felt that the clients’ ability to pay resulting legal fees was not a factor. About 53 percent were neutral. About 24% agreed that other attorneys did consider the client’s ability to pay later legal fees in deciding whether or not to mediate. Table XXXVIII presents this information.

Table XXXVIII
Feedback from External Attorneys & Consultants

* The total number of external attorneys and consultants is 171.

** Five point Likert scale: SD – Strongly Disagree, D – Disagree, N – Neither Agree nor Disagree, A – Agree, SA – Strongly Agree

*** Based on a five-point Likert scale: 1 – Strongly Disagree, 2 – Disagree, 3 – Neither Agree nor Disagree, 4 – Agree, 5 – Strongly Agree

G. What the EEOC Could Have Done Differently

When asked whether the EEOC could have done anything differently for respondent to mediate the charge, the vast majority (82.2%) said “no”. As indicated in Table XXXIX, in only about 8% of the cases did the employer indicate that the EEOC could have done something differently, which would have caused the employer to mediate the charge. This is consistent with our findings that employers investigate cases and make an “intelligent” decision to decline mediation.

Table XXXIX
Whether the EEOC Could Have Done Anything Differently
For Employers to Mediate the Charge

We did a content analysis of the responses to find their common denominators. As Table XXXX indicates, three major categories of actions were suggested by the employers for them to have mediated the charge. Of the 51 participants who said that the EEOC could have taken actions, 20% of them wanted the EEOC to offer them non-monetary settlement ideas as opposed to looking at money as the only option in settling disputes/charges. Sixteen percent of the participants suggested that employers should be given more time to decide on the appropriateness of mediation. Fifty-three percent of them had comments/suggestions about the administration of the EEOC mediation programs. These include giving employers the opportunity to exchange position statements with charging parties (7.8%), improving the communication with the EEOC representative before receiving the charge (5.9%), and not considering mediation as a settlement conference (5.9%).

Table XXXX
Actions EEOC Could Have Taken
For Employers to Mediate the Charge

Given below is a sample of the verbatim responses. The complete set of responses can be found in Appendix E. The comments were selected based on their content and the details offered by the survey participant; they are arranged according to the topics mentioned earlier.

a. Offer alternatives to monetary settlement

“Put more emphasis on non-monetary settlement. Agreements to consider for future raises, non-monetary recognition, and so forth.”

“Accepting mediation knowing the claimant is going to receive a cash settlement, regardless of the merits of the employee's case, is absurd. The EEOC's general stance that the employee must be worthy of cash is very offensive.”

“Every mediation I've attended is really a settlement conference. I have actually been told by mediators [that] it might be worth paying $1,000 (e.g.) to get rid of it (case). I'm a certified mediator and this approach is not true mediation.”

Allow time for the respondent to decide

“More time to make a determination of the merits of the complaint.”

“Often the turn-around time between counsel receiving the charge from the employer and the deadline for designating mediation is too short to make an informed decision. The EEOC is generally amenable to extensions, but occasionally there is not enough time to complete an investigation.”

“Advise employer of potential case merit for "probable cause" based upon charging parties' statement. Request mediation after P.S. [position statement] submission if "Probable Cause" potential.”

Provide more information to the respondent

“I requested information regarding the factual basis of the complainant's charges. None was provided. I'm forced to respond since I'm unable to do a risk assessment of case without any facts being provided. It smacks of "hide the ball" and is very frustrating.”

“Respond to questions I had regarding the allegations. It is quite difficult to respond to allegations with only 2 to 3 sentences provided to the employer.”

Sanction employees who file bad faith charges

“If it would sanction employees who file bad faith charges at the mediation stage, this would be helpful. I am tired of pathetic claims getting a toehold of credibility through mediation. For instance, _______ [name withheld] has threatened fellow employees with violence, has made racist comments. And has been insubordinate on repeated occasions, then he quit.”

H. General Feedback

Our last question was an open-ended question that solicited general feedback from the participants. It asked, “if you have any other comments for the EEOC, please indicate them below.” One hundred and fifty one participants took this opportunity to give general feedback to the EEOC. Given below is a sample of their responses (verbatim). As noted before, it is not our intention to present all responses, as they are presented in Appendix F. After the content analysis summary, we provide a sampling of these comments.

We did a content analysis of the verbatim responses and found that they pertained to the following. Almost 17% of the participants who commented did so relating their positive experiences with the EEOC. Forty percent of the participants suggested that the EEOC should do a better job of assessing the facts/merits of the case. Mediation outcome/settlement issues were on the minds of 19% of the participants. The majority of them felt that non-financial settlement options should be considered, as financial settlement is not an option in all the cases. Twenty-one percent of the participants had comments related to the administration of the program. These include suggestions about program flexibility, information specificity, and system of deterrence for parties who file frivolous claims. Eight percent of the comments were related to the EEOC mediators. This information is presented in Table XXXXI.

Table XXXXI
General Feedback from Employers

22. Positive comments

“The EOS in this case was very fair and professional, she pushed for relevant information and truly assessed the case on its merits in our opinion.”

“In my experiences we have been treated fairly by the EEOC. I wish there was less fear involved when a charge is made. Even though our company works very hard to avoid charges there is always the feelings that we must secure our lawyers to be safe.”

“I have had some good experiences mediating with the EEOC. I attribute that to a neutral mediator and cooperative charging party and/or attorney. I have also had one terrible experience with the program where the mediator was so biased, it was difficult to keep my client in the room.”

“I respect and value the EEOC and the mediation program. I believe you sincerely look for fair and equitable resolution.”

“I believe that the EEOC will be fair in its investigation of the case. This belief is based on my previous experience with the EEOC.”

b. Assessment of case facts

“The EEOC is an intricate part of American society and an extremely necessary organization to offer a no-cost means of resolution to employees. I totally agree with the concept and the operation. However in my personal experience as an employer, in 100% of charges I have been personally involved with, the charging party has been an employee with a very poor work performance record, extreme attendance violation, incapable of attending work or providing any production value whatsoever. This employee uses the EEOC as a scapegoat or means to extort a cash settlement for imaginary offenses. The charges have been completely fabricated. An employee incapable of sustaining viable employment views the EEOC as a means of quick money without working for it ... I approve of its existence, on behalf of employees, not in its abuse by employees. I would not participate in mediation as I believe the employer is assumed to be guilty before evidence is reviewed. I believe a comprehensive Position Statement by a legal professional is the only means to protect an employer from false accusations.”

“There should be a screening process to weed out the completely unfounded complaints (as mild as it may have to be); or perhaps some sort of deterrent for an individual to file a completely unfounded claim. These are very time consuming for both the EEOC and the employer. Thank you!”

“Burden of proof should not be put on the employer so easily. Employees should bear a level of burden other than making sometimes random and bogus claims.”

“In one prior mediation, the only issue discussed was how much money the employer was willing to pay. The only function the mediator served was carrying demands and offers back and forth. This was unproductive.”

“Mediation is effective only if both parties wish to settle. If one or both parties do not wish to settle (e.g. - the employer is unwilling to make a settlement payment), there is nothing to be gained by mediations. In most cases, employers have little incentives to use the EEOC investigation process and the timing of EEOC mediation. As of the time of EEOC mediation, litigation is a distant possibility. Any number of things could happen that would make the employer to avoid liability without settling with the charging party: (1) the EEOC turns a no cause determination, which discourages the charging party from pursuing litigation or discourages the plaintiff's attorney from taking this case; (2) the charging party loses interest in the charge during the course of the length EEOC investigation; (3) The charging party finds [another] offer of employment during the course of the EEOC investigation, and decides to get on with his a her life; and (4) The charging party maybe unwilling to settle to have litigation costs, resulting from lawsuit he filed.”

“I believe that a key will be to help HR Managers understand the process through training and education. The process has promoted itself a legal procedure instead of a fair fact-finding process for non-legal managers. We believe that mediation will require the employer to give up something or appear unwilling to cooperate. Thus, the employer who firmly believes that it has fully lived up to its values, is very reluctant to enter mediation.”

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