U.S. Department of Labor -- Civil Rights Center: EREC

Early Resolution of EEO Complaints (EREC) Program

Purpose:

These procedures are established in accordance with Title 29 Code of Federal Regulations, Part 1614 (Federal Sector Equal Employment Opportunity); the Administrative Dispute Resolution Act of 1996 (110 Stat. 3870); and the U.S. Equal Employment Opportunity Commission (EEOC) Management Directives 110 and 715.

EEOC's regulations require Federal agencies to make available an Alternative Dispute Resolution (ADR) program during both the pre-complaint process and the formal complaint process for Equal Employment Opportunity (EEO) complaints. 29 C.F.R. § 1614.102(b)(2). Accordingly, the U.S. Department of Labor (the Department or DOL) has established the Early Resolution of EEO Complaints (EREC) Program to provide ADR for EEO complaints.

Background:

It is DOL's policy to provide equal employment opportunity for all applicants for employment and employees in accordance with applicable Federal statutes, regulations, executive orders and departmental policy; to prohibit discrimination in employment because of race, color, religion, sex, national origin, age, disability, parental status, sexual orientation or genetic information; and to prohibit retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Rehabilitation Act, Executive Orders 11478 and 13145 or for participating in any stage of administrative or judicial proceedings under those statutes and Executive Orders. The DOL is committed to fostering a workplace that is free of unlawful discrimination and retaliation.

The EREC Program has been designed to support this commitment by DOL, to comply with applicable Federal statutes, regulations, and policies; and to advance DOL's efforts for "Proactive Prevention of Unlawful Discrimination," an element required by EEOC's model EEO program. (See EEOC Management Directive 715.) The EREC Program provides an alternative to the traditional EEO complaint process.

ADR uses a variety of techniques, methods, or processes, usually involving a neutral third party, designed to address disputes in a manner that avoids cost, delay, and unpredictability of more traditional adversarial and adjudicatory processes, such as litigation.

ADR includes, but is not limited to, the following techniques:

Negotiation — Parties and their attorneys or representatives attempt to resolve a dispute through direct discussions with one another.
Facilitation — Involves the use of techniques to improve the sharing of information in a meeting between parties to a dispute. Facilitation focuses on providing procedural assistance to the parties to assist them in resolving a dispute.
Arbitration — An authorized neutral party will review evidence, hear argument, and issue a binding decision.
Mediation — An informal process in which a trained mediator assists the parties in reaching a negotiated resolution of the dispute.
Mini-trial — The use of a neutral evaluator to give opinions on each party's case and the likely court outcome.

ADR programs can offer efficient, cost effective, and less contentious methods to resolve disputes. ADR can avoid lengthy and unnecessary litigation by opening the lines of communication between employee and employer, which can, in turn, maintain or improve working relationships. Thus, ADR can reduce resources expended to process EEO complaints while also promoting greater workplace harmony.

EREC Program

The EREC Program utilizes mediation as its dispute resolution process. With mediation, a neutral third party, a mediator, helps to resolve a conflict by assisting the parties in communicating with each other, identifying issues, and finding mutually agreeable solutions. The mediator must be impartial, with no personal interest in the dispute. The mediator cannot authorize solutions, make decisions or declare a winning party. Rather, the mediator is expected to guide the negotiations and communications between the parties. In cases where the issues are clearly defined, the mediator may simply facilitate discussions. However, because mediators are specially trained and experienced in conflict resolution techniques, they are also able to help the parties work through strained or emotional communications, distrust and longstanding conflict.

Policy:
1. DOL will offer mediation for disputes raised in an EEO complaint of discrimination filed by a DOL employee or an applicant for DOL employment, consistent with its obligations under both 29 C.F.R. Part 1614 and with the Administrative Dispute Resolution Act of 1996, 5 U.S.C. §571, et seq.
2. As part of this program, DOL will provide mediation through a mediator who is not a DOL employee, thereby underscoring the neutrality and impartial nature of this process. Towards this end, DOL will obtain mediators from the Federal Sharing Neutrals Program (SNP) of the Department of Health and Human Services, the Federal Executive Boards (FEB), the Federal Mediation Conciliation Service (FMCS), or other appropriate mediator sources.
Mediation Process DOL employees and applicants for employment may request mediation orally or in writing to resolve an allegation of employment discrimination raised in either the pre-complaint or formal EEO complaint process.
1. Pre-complaint Process
  1. During the initial counseling session, the EEO counselor will advise the aggrieved person of his/her rights and responsibilities in the EEO process, including the option to elect ADR. Should the aggrieved individual choose to participate in the EREC program, s/he must inform the EEO counselor during the initial counseling session.
  2. DOL's Civil Rights Center (CRC) will promote the use of mediation to resolve conflicts in lieu of traditional EEO counseling. However, CRC reserves the right to determine, on a case-by-case basis, that a complaint is not appropriate for mediation.
  3. If a conflict is not appropriate for mediation, the Director of CRC (or the Director's designee) will, within five days of the aggrieved person's election to mediate, provide written notification to the aggrieved person that DOL will not conduct mediation. In such a case, the EEO Counselor will continue to process the informal complaint in accordance with existing EEO Counseling procedures.
  4. Each DOL Agency will designate one or more management official(s), authorized to settle EEO complaints. Once CRC determines that the conflict is appropriate for mediation, the proper DOL official will participate in the mediation.
  5. As discussed more fully below, the EREC Coordinator will be responsible for obtaining the mediator for each mediation; ensuring that logistical arrangements and scheduling have been set; providing the mediator with appropriate documents (i.e., Agreement to Mediate, settlement template); and notifying the appropriate officials regarding the outcome of the mediation.
  6. Each mediation session is expected to last an average of three (3) hours. However, if the mediator recommends that an additional session would be beneficial, and the parties agree, more than one mediation session may be used. In any case, the informal process cannot extend beyond 90 calendar days from the date the aggrieved person contacted an EEO Counselor.
2. Formal Complaint Process
  1. A complainant may elect mediation if s/he elects a hearing before the EEOC.
  2. CRC will advise a complainant of his/her ability to request mediation upon receipt of written notification of the election for a hearing before EEOC. CRC reserves the right to determine, on a case-by-case basis, that a complaint is not appropriate for mediation. In those cases, the complainant will not be extended an offer of mediation.
  3. The complainant must elect mediation within five (5) calendar days of receipt of the offer of mediation.
  4. Each DOL Agency will designate one or more management official(s), authorized to settle EEO complaints, to participate in mediations. Once CRC determines that the conflict is appropriate for mediation, the proper DOL official will participate in the mediation.
  5. As discussed more fully below the EREC Coordinator will be responsible for obtaining the mediator for each mediation; ensuring that logistical arrangements and scheduling have been set; providing the mediator with appropriate documents (i.e., Agreement to Mediate, settlement template); and notifying the appropriate officials regarding the outcome of the mediation.
  6. Each mediation session is expected to last an average of three (3) hours. However, if the mediator recommends that an additional session would be beneficial, and the parties agree, more then one mediation session may be used.
Mediator
1. The mediator's role is to be a neutral third party, who leads and manages the discussion between the disputing parties without making decisions or judgments.
2. The mediator cannot be employed by DOL.
3. The mediator will be a member in good standing of a recognized mediation program.
4. The mediator must have a working knowledge of EEO laws and regulations, which includes but is not limited to:
  1. 29 C.F.R. Part 1614
  2. EEOC Management Directive 110
  3. Theories of discrimination
5. At the outset of the mediation, the mediator will
  1. Make introductions;
  2. Explain that each party's representative may remain throughout the mediation process;
  3. Explain the purpose of mediation;
  4. Explain the role of the mediator;
  5. Remind the parties that all information revealed during mediation is confidential and cannot be used as evidence in any subsequent litigation or administrative process;
  6. Inform the parties that the mediation may be terminated upon request or at the mediator's discretion anytime during the mediation; and
  7. Set the ground rules for the session.
6. If a resolution is reached by the parties, the mediator will ensure that the agreement is:
  1. Put into writing;
  2. Reviewed by the CRC; and
  3. Voluntarily signed and copies are provided to each party.
7. The mediator will immediately provide the original signed agreement to the EREC Coordinator.
8. If an agreement is not reached at the conclusion of the mediation session, the mediator will inform the EREC Coordinator of the outcome of mediation.
EEO Counselors
1. In accordance with 29 CFR Part 1614 and MD-110, the EEO Counselor will provide the following information to the aggrieved person:
  1. Letter covering rights and responsibilities of the aggrieved person.
  2. Waiver of anonymity.
  3. Right to representation.
  4. "Benefits to Mediation" handout.
  5. Offer of EREC in lieu of traditional counseling.
  6. Informal Complaint of Discrimination form. (The aggrieved person will fill out the Informal Complaint of Discrimination form, including the allegation data.)
2. The EEO Counselor will discuss both the traditional EEO counseling and mediation options.
3. The EEO Counselor will notify the aggrieved person that an election must be made during the initial counseling. The CRC Director or the Director's designee must approve any extensions.
4. The EEO Counselor should address any questions or concerns the aggrieved party may have concerning the process. After doing so, both the aggrieved person and the EEO Counselor will sign the "Benefits to Mediation" handout, confirming that the EEO Counselor has explained the ADR process and the aggrieved person understands his or her rights.
5. The mediation process begins immediately upon the aggrieved person's election for mediation, and traditional counseling stops.
6. The EEO Counselor will complete the following tasks:
  1. Request that the aggrieved person sign the Agreement to Extend the Pre- Complaint Period for up to 60 days, in accordance with 29 C.F.R. Part 1614.405(f);
  2. Inform the aggrieved person that he or she will be notified when the mediation session is scheduled;
  3. Provide (via hand delivery, email, or facsimile), the Informal Complaint of Discrimination Form, the Agreement to Extend the Pre-Complaint Period, and the signed "Benefits to Mediation" handout, to the EREC Coordinator immediately upon the aggrieved person's election to use mediation; and
  4. If the mediation does not result in a resolution, provide the aggrieved person the Notice of Right to File a Formal Complaint.
EREC Coordinator
1. The Director of CRC will designate an EREC Coordinator, who will assist the mediator and track the progress of the mediation.
2. The EREC Coordinator will contact the agency's EEO manager to obtain the contact information for the settlement official within two (2) calendar days.
3. The EREC Coordinator will create a file for the complaint and log the request into a tracking system, making note of all parties' names, addresses, a brief description of the dispute, and date of the request.
4. The EREC Coordinator is responsible for addressing inquiries from the parties during the mediation process.
5. The EREC Coordinator will coordinate with SNP or other appropriate mediator within five (5) calendar days, to set up a time and location for mediation that is conducive for all parties involved within the 90-day counseling period timeframe.
6. The EREC Coordinator will contact the parties in the dispute with the tentative time and location of the mediation within three (3) calendar days. Once the parties agree to the time and location of the mediation, the EREC Coordinator will e-mail the parties with the exact address of the mediation and the mediator's contact information immediately. The EREC Coordinator will inform the mediator by e-mail of the official time and location of the mediation. The mediator will also be provided with the parties' contact information.
7. The EREC Coordinator will ensure that the mediator has a template of the settlement agreement.
8. The EREC Coordinator will work with the mediator to provide the necessary logistical arrangements for the mediation, including a telephone, fax machine, copier, computer, and any reasonable accommodations, as appropriate.
9. Once the mediation has ended, the EREC Coordinator will log the outcome of the mediation into the tracking system. The EREC Coordinator will notify the EEO Counselor about the outcome of the mediation.
10. If there is a resolution of the dispute, the EREC Coordinator will place the original signed agreement in the aggrieved person's file. Within two days of receiving the settlement agreement, the EREC Coordinator will inform the aggrieved person in writing that, in the event of the Agency's failure to comply with the agreement, he or she must notify CRC of such noncompliance within 30 calendar days of the date when he or she knew, or should have known, of the noncompliance.
11. If the mediation fails to reach a resolution, the EREC Coordinator will immediately instruct the EEO Counselor to proceed with producing a Counselor report and providing a notice of right to file a formal complaint.

Last updated: July 6, 2009

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