E. Patrick McDermott, Ph.D., LL.M, J.D.
Anita Jose, Ph.D.
Ruth Obar, Ph.D.¹

Executive Summary

We investigated the reasons for the lack of employer participation in the Equal Employment Opportunity Commission (EEOC) mediation program. Using a survey, we captured the feedback of employers as to why they declined to mediate a particular case before the EEOC, the context of their decision, their familiarity with the EEOC mediation program, and their general impressions about the Agency and its mediation program.

We found three important reasons why employers decline to mediate a particular case. The main and overwhelming factor in an employer’s decision to decline the offer of mediation was that the "merits of the case did not warrant mediation." The second major factor is that the employers did not believe that the EEOC was likely to issue a "reasonable cause" finding. The third factor is the perception that the EEOC mediation program requires monetary settlement. We emphasize that the key factor that causes employers to decline mediation is that they do not believe that the charge is meritorious.

We also examined the context of the decision to decline mediation. We found that the employers who declined the offer of mediation are well informed regarding the EEOC processes and the EEOC mediation program. Almost half have prior experience mediating in the program. The vast majority of the employers conducted their own internal investigation of the charges prior to declining to participate in the mediation program.

Most of the survey respondents were familiar with the EEOC mediation program prior to deciding to decline to participate in the program. Of those who were unfamiliar with the program, most had investigated the EEOC mediation program prior to declining mediation.

In almost all cases, the survey respondents stated that the EEOC could not have done anything differently to entice them to mediate. It is the employer’s perceived quality of the charge that dictates whether the employer goes to mediation, not the perceived quality of the mediation program.

The survey respondents' perceptions about the EEOC were rather neutral. Their perceptions of the mediation program, though slightly more positive than their perceptions about the Agency, were neutral as well.

We conclude that there is little that can be done with the mediation program, as presently structured, to increase the participation rate. Should the EEOC wish to increase its mediation participation rate it can do so by changing the employer's perception of the merits of the charge at issue. More careful screening may result in a higher percentage of charges with potential merit.

Another way to change the employer perception of the merits of the charge may be to allow the charge investigation to proceed and offer mediation at a later point. Our research indicates that many employers are willing to mediate the charge later if necessary.

A marketing program may increase the attractiveness of the mediation program if it can convince employers that there is value in mediating a charge. Here, the perception that money must be paid to settle the charge at mediation must be addressed.

Table of Contents

1. Introduction
2. Research Methodology
   1. The Questionnaire
      1. Contents and Format
      2. Pretest
      3. The Survey Protocol
   2. Response Rate
      1. Overall Response Rates
      2. Field Office Participation
3. Profile of the Employers, Representatives, and Charges
   1. Employer Profile
      1. Employer Type and Employment Size
      2. Employer’s Prior Participation in the EEOC Mediation Program
   2. Employer Representative Profile
      1. Representative’s Position in the Organization
      2. Representative’s Role in the Mediation Decision
      3. Representative’s Prior History with the EEOC
   3. Charge Profile
4. Results
   1. Information on Charging Parties
   2. Familiarity with the EEOC Mediation Program
   3. Internal Investigation of Charges
      1. Overall Analysis of the Actions Taken by the Respondents to Investigate the Charge
      2. The Influence of Other Variables on the Actions Taken to Investigate the Charge
         1. Charging Party’s Employment Status
         2. Charging Party’s Legal Representation
         3. Employer’s Prior Participation in the EEOC Mediation Program
         4. Representative’s Prior Participation in the EEOC Mediation Program
         5. Representative’s Familiarity with the EEOC Mediation Program
   4. Specific Reasons for the Lack of Participation in the EEOC Mediation Program
      1. Reasons for Declining the Offer to Mediate
      2. Detailed/Specific Analysis of the Reasons for Declining the Offer to Mediate
      3. The Influence of Other Variables on the Reasons Cited for Declining the Offer to Mediate
         1. Charging Party’s Employment Status
         2. Charging Party’s Legal Representation
         3. Employer’s Prior Participation in the EEOC Mediation Program
         4. Representative’s Prior Participation in the EEOC Mediation Program
         5. Representative’s Familiarity with the EEOC Mediation Program
   5. Participants Ratings of the EEOC Mediation Program and the EEOC as a Whole
   6. Feedback From External Attorneys and Consultants
   7. What the EEOC Could Have Done Differently
   8. General Feedback
5. Conclusions
6. Implications

Appendices

Appendix A. Questionnaire A (Full Version)

Appendix B. Questionnaire B (Short Version)

Appendix C. Survey Protocol

I. Introduction

The Equal Employment Opportunity Commission’s (EEOC) mediation program was initially introduced as a pilot program in 1991 in four field offices (Philadelphia, New Orleans, Houston, and Washington). The program was expanded and by the end of 1997 each district office had a viable pilot mediation program.² In 1999 the program was fully implemented nationally as an integral component of the EEOC’s charge resolution process. An evaluation of the program found that it was very well received by charging party and employer participants.³ Although employers who participated in the program are very satisfied with it, many employers do not use the program. This prompted the EEOC to commission a study into the reasons why employers decline to participate in a program that is so well accepted by those employers who participate in it.

The EEOC awarded a contract to Drs. McDermott, Jose, and Obar through the Center for Conflict Resolution at Salisbury University to conduct an investigation into the reasons why some employers elect to not participate in the EEOC mediation program. This team has prior experience with the EEOC mediation program, conducting two separate inquiries into the performance of the program.⁴

The purpose of this study is to understand the decision-making processes and dynamics that surround the employers’ decision to decline to participate in the EEOC mediation program. More specifically, the objectives of this study are to: (1) Examine whether the respondents conducted an internal investigation of the EEOC charge prior to making the decision to decline the opportunity to mediate, and if they did, what different types of internal investigative actions/tactics did they engage in; (2) Explore whether the respondents were familiar with the EEOC mediation program prior to their decision to decline to participate in the program; (3) Investigate the reasons for the respondents’ election to decline to participate in the program; (4) Analyze the respondents’ general perceptions about the EEOC and its mediation program; (5) Gather information about the attitudes of external participants—external attorneys and consultants—concerning the factors that might influence their decision about mediation; (6) Investigate whether there was anything the EEOC could have done differently so that respondents would mediate the charge; and (7) Solicit general feedback for the EEOC.

This report is organized into six major sections. After the brief introductory section, the second section presents the research methodology used in the study. The third section gives a profile of the respondents and charges. The results are presented in the fourth section. The fifth section presents the conclusions of the study and the final section presents their implications.

The Offer of Mediation By the EEOC

Each EEOC office has flexibility in the mediation offer process. This was intentional in the design of the program to ensure that the program is flexible and meets the varying program and workload needs in each office. In general the following procedures are followed to encourage parties to mediate.

After a charge of discrimination is filed, the EEOC provides information to the charging party about the mediation program and explores whether the charging party would be willing to participate in mediation. The actual mediation is contingent on whether 1) the charge is eligible for mediation and 2) the respondent agrees to mediation. Once it is determined that the charge is eligible, the respondent is invited to mediate the charge. The respondent receives an invitation to mediate along with a mediation fact sheet and/or brochure describing the program.

Following the intake of the charge, the eligible charges discussed above are assigned to the office Alternate Dispute Resolution (ADR) unit. Here the staff makes additional efforts to "convene" the parties.⁵  The ADR staff may provide additional information describing the benefits of the program. If respondent has not replied to the invitation to mediate, ADR staff usually contact the respondent by telephone to answer any questions regarding the EEOC mediation program and to encourage respondent's participation.

In general, the respondent is given 15 days to respond to the initial invitation to mediate; this time frame is flexible and may vary if more time is needed. If the respondent agrees to mediate, the time limit for providing an initial position statement in response to the charge, which is usually 30 days from filing of the charge, is waived while the charge is in the mediation process.

II. Research Methodology

This section presents the methodology of this research. It is divided into two subsections. The first introduces the contents and format of the research questionnaire and outlines the protocol used in the questionnaire administration process. The second presents the response rate.

The primary method of data collection is a survey of employers who have declined to participate in the mediation program. The field offices distributed the surveys for a two-month period beginning in June and ending in August. We also use a secondary source, internal documents from the EEOC, to collect information regarding the characteristics of the charges.

The Questionnaire

1. Contents and Format

A medium length, multi-part questionnaire was designed to measure the reasons for the lack of employer participation in the EEOC mediation program. It contained both open-ended and close-ended questions. Three of the questions, which measured attitudes and perceptions, used the Likert-scale. This flexible format was used to solicit the most accurate and complete responses from the employer representatives completing the survey (“representatives”).

The research team formulated the questionnaire, which was then sent to the EEOC for feedback. Once the questionnaire was finalized, it was pre-tested to measure its reliability and validity with the respondents and to evaluate the implementation of the data collection methodology based on the feedback of the EEOC coordinators who assisted the team.⁶

The questionnaire consisted of 20 questions designed to elicit information specific to the charge, the employer, and the employer representative. In the succeeding discussions and tables the basis of analysis is either the total number of charges, the employers, or employer representatives, depending on the specific question being analyzed.

These questions are organized into four parts. The first part, which was comprised of 10 questions, asked for basic information about the employer, the employer representative, and the charging party. This was designed to collect data on the background of the employer representatives completing the survey, their prior experience with the EEOC and its programs, and the employer’s prior participation in the EEOC mediation program. Three of the questions dealt with the employer representative’s knowledge of the charging parties and their representatives.

The second part of the questionnaire contains six questions. These questions pertain to the following: (a) internal investigations, if any, that the employer representatives and/or employers undertook to investigate the charge prior to their decision to decline to mediate; (b) their familiarity with the mediation program; (c) their reasons for declining to mediate; and (d) their general perceptions about the EEOC. The third section contains questions for external attorneys and consultants about their experiences and perceptions of factors related to the decision to decline mediation.

The last section contains one close-ended question and two open-ended questions. The first open-ended question invited feedback about whether the EEOC could have done anything differently so that the employer would have mediated the charge. The second solicited general comments regarding the EEOC.

As noted above, our questionnaire captures information specific to the charge, employer, and employer representative. Since the primary emphasis of the survey is WHY employers elected not to participate in the EEOC mediation program for a PARTICULAR CASE, the survey is designed to cover every charge for which the respondent (employer or employer representative) declined mediation. Given the fact that some of the employers are repeat participants, it became pertinent that we develop a shortened version of the questionnaire. As discussed in the next section, the need for a shortened questionnaire was a key improvement derived from our pretest. Hence we developed two versions of the questionnaire: the full version (Questionnaire A) and the short version (Questionnaire B). (These are shown in Appendix A and Appendix B, respectively.) Questionnaire B was a modified survey designed for employers with multiple charges. It omits certain employer and representative questions that were already captured in our database from the employer's initial response to Questionnaire A. The full version was sent to employers, unless they indicated that they had already participated in the survey before.

2. Pretest

We pretested the questionnaire and the protocol. The objectives of the pretest were to test the reliability of the survey instrument (“the questionnaire”) and the effectiveness of the data collection methodology in generating responses. Six EEOC district offices—Charlotte, Chicago, Houston, Chicago, Milwaukee, and Denver—participated in this pretest. In order to examine the effectiveness of the two different data collection methodologies—faxing and mailing—three of the offices were asked to fax the surveys and the other three to mail the surveys. We decided to add the option to receive the completed surveys by fax to “strike while the iron was hot” to maximize feedback.

The pretest was successful. The pretest results and the feedback from the coordinators of the participating district offices provided valuable insights into the conduct of the survey. Based on our analysis of the pretest responses, questions were added, rephrased, or deleted from the questionnaire. Based on the coordinators’ feedback, the protocol was modified to address the concerns of the field coordinators and the respondents. The development and use of the shortened questionnaire (Questionnaire B) was a by-product of the pretest. Some field coordinators relayed the “exasperation” that some employers felt in having to complete more than one questionnaire. In order to maximize our coverage, we opted for a shorter questionnaire to avoid fatigue.

An analysis of the pretest response rates showed that faxing yielded a better response rate than did mailing. This, combined with the suggestions from the field, led to our decision to use fax as our primary survey delivery method. Field coordinators were instructed to offer to immediately fax the questionnaire once the respondent expressed their willingness to participate in the survey. In summary, the successful pretest enabled us to make the modifications that needed to be made to the survey instrument, data collection process, and protocol.

3. The Survey Protocol

All EEOC district offices participated in the survey. A protocol was established to ensure the standardization of data collection (Appendix C). It relied on the field office personnel to immediately identify those employers who declined to participate in mediation and offer their representatives an opportunity to participate in the study. If the representative agreed, the field office coordinators immediately offered to send a questionnaire by fax or mail.

We requested that the field office mediation staff keep a weekly log of their activities regarding the survey distribution. The staff were instructed to record the following information in their weekly logs: the charge numbers of employers who were offered to participate in the study, the type of questionnaire sent (A or B) and the mode of transmission (fax or mail) among employers who agreed to participate in our survey, and a short description of why employers chose to decline the offer of mediation. These logs form the basis of the computation of our response rate.

Response Rate

1. Overall Response Rates

Based on the weekly logs, a total of 2,365 respondents were contacted concerning participation in the survey. Of these, 2,085 agreed to participate in the survey. A total of 185 organizations refused to participate in the survey. Another 95 organizations did not participate due to the coordinators’ inability to contact them, their failure to return calls, or some other actions other than a direct refusal. (We have reason to believe that the number of respondents who were contacted and, more importantly, the number who agreed to participate in the survey are higher than the above figures. This is discussed in detail below.)

Questionnaires were sent to the 2,085 employers who agreed to participate. Of these 2,085 employers, 2016 (97%) were sent Questionnaire A, which was the full survey. Questionnaire B was sent to 69 (3%) employers. Most of the questionnaires were sent by fax. Table I shows the survey delivery breakdown.⁷

Table I
Questionnaire Type and Mode of Transmission
For Those Who Agreed to Participate in the Survey (N = 2,085)

We received a total of 653 questionnaires: 629 Questionnaire A surveys and 24 Questionnaire B surveys. An inspection of the charge numbers reveals that a total of 135 completed questionnaires had charge numbers that were not listed in the weekly logs. For example, of the 629 version A questionnaires we received, only 502 are actually listed in the logs (see Table II.A below).

Table II.A
Number of Questionnaires Received

* Since some are not listed in the logbooks, the exact numbers cannot be determined.

While a few (nine) of the completed questionnaires cannot be traced because they had no charge numbers, a majority of these charges were not recorded in the weekly logs. This implies that the number of employers who agreed to participate in our survey is greater than 2,085.

This has bearing on the computation of the response rates. The response rate is the ratio between the number of questionnaires received and the number of questionnaires sent out. In the case of the full-version questionnaires, the proportion of questionnaires received to the number sent as recorded in the weekly logs (629 divided by 2,016) overstates the actual response rate since we suspect that the actual number of questionnaires sent out is greater than 2,016. Furthermore, because information regarding how many were actually sent by fax or mail is incomplete, we are unable to compare the difference between faxing and mailing.

The approach we took is to base the computation of the response rates on charges that are listed in the weekly logs. Additionally, we included only those that also appear in the EEOC database: Of the 2,085 listed in the weekly logs, only 2,034 have matching entries in the EEOC database.⁸ We attribute this discrepancy to recording errors, e.g., illegible handwriting and incomplete charge numbers. Thus, the response rates were computed based on charges listed in the weekly logs and appearing in the EEOC database. These response rates are based on a subset of the actual number of questionnaires sent out—a subset of verifiable charge numbers as they appear in the weekly logs and the database.

The resulting numbers and response rates are shown below. The results show that faxing results in a higher response rate than mailing.

Table II.B
Overall Response Rates

As mentioned earlier, we received 629 Type A questionnaires (the complete or full-fledged version) and 24 Type B questionnaires (short version). Since the number of Type B questionnaires is relatively small relative to the number of Type A questionnaires, we base our analysis on the 629 completed questionnaires. Using just one data set (629) makes the presentation of results simple and streamlined. We have ascertained that the exclusion of the 24 questionnaires will not significantly affect our analysis and resulting conclusions.

3. Field Office Participation

Table III presents information about the EEOC field office participation. We identify the total number of surveys received from each office and the respective percentage of the overall data.

Table III
EEOC Field Office Participation

In survey research one of the key questions that needs to be answered is the “representativeness of the sample.” In other words, we need to ascertain that the sample is representative of the whole population. In this study, this consists of charges that came before the EEOC encompassing the same fiscal year (2003) when this study was conducted. To do this, we present a profile of our employer respondents with respect to certain characteristics and the profile of all the charges filed from October 1, 2002 to August 15, 2003 (the period corresponds to the start of the current fiscal year and the end of the survey period).

First, we present a comparison between the distribution of the survey charges and all EEOC charges with respect to the originating district or field office. This is shown in Table IV below. While the distribution of the survey respondents does not closely mirror that of the entire population, we believe that this discrepancy will not materially affect the validity of our conclusions. As discussed in the succeeding discussions (Sections III.A and III.C), we have strong indication that our sample is representative of the population with respect to employer and charge characteristics. Furthermore, since the study is primarily concerned with the nationwide evaluation of the program, the most important consideration in this regard is that all district offices are represented in our survey, albeit the distribution does not perfectly mirror the district-by-district distribution.

Table IV
Comparison of Field Office Participation

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.

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.”

V. Conclusions

Our investigation into the reasons for the lack of employer participation in the EEOC mediation program yielded interesting and consistent results. The conclusions of our research are the following:

The main, and overwhelming factor in an employer’s decision to decline the offer of mediation was that the “merits of the case did not warrant mediation.”

The second major factor, that the EEOC was not likely to issue a “reasonable cause” finding, also relates to the perceived merits of the case.

Other than the merits of the case and the low likelihood of a “reasonable cause” determination, the next important factor cited by employers who declined mediation is their perception that the EEOC mediation program requires monetary settlement. The perception of employers is that if they do not bring money to the mediation table they are not welcome.

The employers in this survey and their representatives who declined the offer of mediation are well informed regarding the EEOC processes and the EEOC mediation program. Almost half have prior experience mediating in the program.

The vast majority of the employers (91.7%) conducted their own internal investigation of the charges prior to declining to participate in the mediation program. They used a wide variety of methods to do their internal investigation of the charges. These actions include document reviews (87.2%), consultations with other management employees (86.5%) and non-management employees (51.3%), conversations with charging parties’ supervisors (79.2%), reviews with company attorneys (49.0%), statement collections from involved parties (39.0%), legal research (37.1%), and conversations with charging parties (25.3%).

The vast majority of the representatives (81.2%) were familiar with the EEOC mediation program prior to deciding to decline to participate in the program. Of those who were unfamiliar with the program, only a little over a third (35%) decided to investigate the program prior to deciding not to participate. Those representatives who were unfamiliar with the program and yet decided not to investigate it stated that their decision not to investigate the program was based on the specifics of the charges.

Most employers who participated in the EEOC mediation program in the past but rejected mediation in this study did not indicate that the rejection was due to their unproductive experience with the program. It is not the program that is a disincentive to mediate but rather the perceived quality of the EEOC charge at issue.

The participants have a neutral impression about the EEOC in general. Their impressions about the EEOC mediation program, though slightly more positive than about the overall EEOC, are neutral as well.

The feedback from the external attorneys and consultants showed that their decision about whether to mediate did not depend upon the client’s financial capacity or the charging party’s legal representation status. There was some moderate agreement that in some cases they would consider private mediation even though they won’t consider the EEOC mediation.

In the vast majority of the cases (82.2%), the EEOC could not have done anything differently for respondents to mediate the charge. This confirms the earlier finding that it is the merits of the case (or perceived lack of) that drives the decision not to participate in the EEOC mediation program. One thing that the EEOC may want to consider if whether or not employers are provided enough time to accept or reject mediation in the convening process. Also, for some parts of the country the distance that one must travel to mediate is an obstacle.

In the solicited general comments from the employers about the EEOC the primary concern was that the EEOC needed to do a better job of screening cases to ensure that meritless claims are dismissed. Thus, the “theme” of case/charge merit seems to remain throughout employer responses.

VI. Implications

From a policy perspective the EEOC must consider whether they can, or should, seek to take further action to bring these cases into the mediation program. Mediation is often referred to as “facilitated negotiation”. Negotiation theory indicates that parties seek to negotiate where there is some mutual need that must be accommodated by negotiation. Absent such an interdependency of goals or objectives, the use of mediation is problematic.

It is clear from our research that the declining employers perceive that the EEOC charge is without merit and that mediation serves no purpose. Employers also indicate that since they believe that the program requires that they bring money to the table, this leaves little room to agree to mediate a charge that they perceive is meritless.

As presently designed, at the moment in time when mediation is offered, employers have investigated the charge and are not ready to negotiate based on their perception of the case. In general this lack of interest in mediating is not related to the EEOC or its mediation program. Thus, there is little that the present pre-investigation program, as structured, can do to increase the participation rate.

Should the EEOC wish to increase its mediation participation rate it can do so by changing the employer’s perception of the merits of the charge at issue. This may be done a few ways. First, employers believe that some of the charges offered for mediation should never have been selected for mediation as they are completely without merit. If this is the case, then more careful screening should result in a richer quality of charges and thus a higher mediation acceptance rate.

A second way to change the employer perception of the charge may be to allow the charge investigation to proceed and offer mediation at a later point. If mediation was offered at a later point, after an EEOC investigation indicates that the charge may have merit but before a final investigative determination, it is expected that mediation would be more attractive to the employers. This is supported by our research results indicating that many employers are willing to mediate the charge later if necessary.

A third way to change employer perception relates to the choice that the employer has between resolution at mediation and an EEOC investigation. The EEOC may want to consider whether its investigatory arm’s percentage of probable cause findings, and the depth of the charge investigation, influences employers’ willingness to participate in mediation.

In addition to changing employers’ perceptions regarding the merits of the charge, another way to change employers’ perceptions about mediation is to make it clear to all parties that a nonmonetary resolution is possible. If employers are correct that these charges are without merit, and if mediation establishes these facts, then it is possible that the charging party’s perception would be altered and a nonmonetary resolution would occur. On the other hand, if the employer learned new facts then a monetary resolution may be appropriate. Thus, the perception that money is required to participate in the program may cause employers to decline and also block the resolution of some charges. However, it must be recognized that such a change may result in a lower resolution rate at mediation, as money may be a key demand that will not be compromised.

Another implication pertains to the marketing of the EEOC mediation program to the employers. A vast majority of employers who participate in the EEOC mediation program are satisfied with the process.²⁰ While the main reason for the lack of employer participation is the perceived lack of merit of the charge, it is possible that a better marketing of the program could yield more employer participation. Given that the majority of the survey participants have a rather neutral perception about the EEOC and the mediation program, it is worth investigating whether there is anything the EEOC could do to better educate the employers about the benefits of the mediation program. The data about employer perceptions suggest that the EEOC mediation program does not enjoy a separate identity; rather it could be concluded that employers lump the EEOC and its different programs together. A marketing program designed to emphasize the benefits of mediation and the positive experience of previous participants of the EEOC mediation program could improve employer participation, especially among those with negative or neutral perception about the EEOC.

In sum, the failure of more employers to enter EEOC mediation in its current design as a pre-investigative program is primarily structural. Employers do not believe that they have incentive to mediate at the pre-investigation stage because at this time in the process they do not believe the charge has merit; they also believe that they have to pay money at mediation. These employers also do not have any concern that the EEOC investigation that will occur in lieu of resolution at mediation will be adverse to their interests. Thus, employers who decline to mediate do so after making a decision that at the time of the offer to mediate is well informed and in good faith.

Dear Respondent Official or Respondent Representative:

This is a confidential survey. As a respondent who has declined to participate in the EEOC mediation program, your opinions and insights into your reasons for declining to participate in the program are of great value for two reasons. First, your candid and complete answers to this survey will provide the EEOC with knowledge and insight on the reasons why some employers do not participate in the mediation program. Second, the information you provide will help the EEOC to improve its mediation program, which will directly benefit your organization or client and other potential participants.

We are professors at Hood College and the Franklin P. Perdue School of Business at Salisbury University. Working under contract with the Equal Employment Opportunity Commission (EEOC), we will compile the data in strict confidence and will prepare a summary report for the EEOC. The EEOC will not be able to identify you or your comments. The EEOC Charge number is included in this survey for internal use by the research team. We will not use this charge number or any of your responses to identify you to the EEOC or to any other entity. Your assistance will allow the EEOC to better understand employer perceptions and will contribute to the improvement of its current mediation program.

Once again, let us assure you that your identity is protected by strict confidentiality, thus allowing you to be candid and open in answering the survey questions. No one will know how you answered the questions because we will never report findings on an individual basis, but only as the entire group has answered.

Please return the questionnaire to us in one of the following two ways. Please fax the completed survey to us at 775-871-9056. (If you encounter any transmission problems our backup fax number is 410-990-0172.) No cover sheet is necessary as this private fax goes directly to a team researcher. Or, if you prefer, you may send it to us by mail to Dr. Anita Jose, MBA Director, Department of Economics & Management, Hood College, 401 Rosemont Avenue, Frederick, MD 21701.

We appreciate your participation! Your feedback will help the EEOC to improve its mediation program.

Thanks once again!
The Research Team
Drs. E. Patrick McDermott, Anita Jose, & Ruth Obar

---

Please identify yourself:

[ ] I am a member of Management
[ ] I represent the employer as Legal Counsel.  Please specify whether you are an:
               [ ]  In-House Counsel
               [ ]  External Counsel    
[ ] I represent the employer as an External Consultant
[ ] I represent the employer as the (non-managerial) Human Resource or 
     Personnel Representative
               [ ] I am the CEO or Owner
[ ] Other (Specify)______________

Please identify your role in deciding whether to mediate the case or not:
[ ] I am the sole decision-maker
[ ] I am one of the decision-makers
[ ] I provide input to the decision-maker(s)
[ ] Other(Specify) __________________

What is the current status of the charging party’s employment relationship with your organization? 
	[ ]Continuing               [ ]No Longer with the Organization                   [ ] Refusal to Hire
             		                                         
Is the charging party being represented by an attorney in this case? 
	[ ]Yes                           [ ]No                               [ ]Do not know

Is the charging party being represented by a Union in this case?
	[ ]Yes		           [ ]No                               [ ]Do not know	

The number of times the company/employer has previously participated in the EEOC mediation program:
	[ ] Zero               [ ]1-5               [ ] 6-10              [ ] 11-15             [ ] 16-20              [ ] 21+
	
The approximate number of cases that you have had before the EEOC as the representative of any employer is:
	[] Zero	           [] 1-5	         [ ] 6-10	        [ ] 11-15	          [ ] 16-20	       [ ] 21+

The approximate number of times that the EEOC has issued a “Notice of Reasonable Cause” against any client/company represented by you is:
	[] Zero            [] 1-5	         [ ] 6-10	        [ ] 11-15	          [ ] 16-20	       [ ] 21+

The number of times that you have litigated against the EEOC in Federal District Court is:
	[] Zero	           [] 1-5	         [ ] 6-10	        [ ] 11-15	          [ ] 16-20	       [ ] 21+
 
The number of times that you have participated in the EEOC mediation program in the past is:
	[] Zero	           [] 1-5	         [ ] 6-10	        [ ] 11-15	          [ ] 16-20	       [ ] 21+
	

1. Did you or your organization investigate the EEOC charge prior to making your decision to decline the opportunity to mediate?

Yes -- Please proceed to Question 2.

No -- Please skip to Question 3.

2. If you or your organization conducted an investigation, which of the following actions did you take?

3.Were you familiar with the EEOC mediation program prior to your decision to NOT participate in the program?

Yes -- Please proceed to Question 4.

No -- Please answer the following question.

3a. Did you investigate the EEOC mediation program prior to your decision to NOT participate in the program?

Yes -- Please proceed to Question 4.

No -- Please answer the following question.

 

3b. If you answered “no” to the question above, please specify why.

 

 

 

4.Have you ever attended any EEOC Outreach program or other seminars that included an EEOC representative?

 

 

 

Yes    No

5.Please provide information regarding the reasons why you are electing not to participate in the EEOC mediation program. Below is a list of possible reasons why companies elect not to participate in the program. Please review this list and place a check mark next to all that apply and indicate the importance of the reason in your decision not to participate in mediation.

For example:

6. We are interested in your general perceptions of the EEOC. Please circle the appropriate responses to the following statements.

7. Please circle the appropriate responses to the following statements. (Do not complete this question if you are in-house counsel or other staff.)

8. Was there anything the EEOC could have done differently so that you would mediate this charge?

Yes -- Please answer the following question.
No -- Please proceed to Question 9.

8a. If you answered yes, please explain.




 

9. If you have any other comments for the EEOC, please indicate them below.




 

QUESTIONNAIRE RETURN INFORMATION

Please FAX the completed questionnaire to 775-871-9056 (backup fax number is 410-990-0172) OR please MAIL the completed questionnaire to:
Dr. Anita Jose
MBA Director, Department of Economics & Management
Hood College, 401 Rosemont Avenue
Frederick, MD 21701

CONTACT INFORMATION

If you have any questions or comments about the survey, please do not hesitate to contact Drs. Jose or McDermott directly. Dr. Jose can be contacted via telephone (301-696-3691) or email (ajose@hood.edu). Dr. McDermott can be contacted via email at epmcdermott@salisbury.edu.

Dear Respondent Official or Respondent Representative:

Thank you for participating in our survey. We understand that your time is valuable and do not wish to burden you excessively. However, we believe that each case you are involved in is unique. As such, we request that you answer a couple of questions that are specific to this charge. We appreciate your cooperation.

Once again, let us assure you that your identity is protected by strict confidentiality, thus allowing you to be candid and open in answering the survey questions. No one will know how you answered the questions because we will never report findings on an individual basis, but only as the entire group has answered.

Please return the questionnaire to us in one of the following two ways. Please fax the completed survey to us at 775-871-9056. (If you encounter any transmission problems our backup fax number is 410-990-0172.) No cover sheet is necessary as this private fax goes directly to a team researcher. Or, if you prefer, you may send it to us by mail to Dr. Anita Jose, MBA Director, Department of Economics & Management, Hood College, 401 Rosemont Avenue, Frederick, MD 21701.

We appreciate your participation! Your feedback will help the EEOC to improve its mediation program.

Thanks once again!

The Research Team
Drs. E. Patrick McDermott, Anita Jose, & Ruth Obar

What is the current status of the charging party’s employment relationship with your organization? 
	[ ]Continuing               [ ]No Longer with the Organization                    [ ] Refusal to Hire
             		                                         
Is the charging party being represented by an attorney in this case? 
	[ ]Yes                     [ ]No                  [ ]Do not know

Is the charging party being represented by a Union in this case?
	[ ]Yes		           [ ]No                  [ ]Do not know	


If this charge is against another company (i.e., different from the one you’ve previously filled out a questionnaire for): 

The number of times the company/employer has previously participated in the EEOC mediation program:
	[ ] Zero                    [ ]1-5                     [ ] 6-10              

        [ ] 11-15                   [ ] 16-20                  [ ] 21+

1. Did you or your organization investigate the EEOC charge prior to making your decision to decline the opportunity to mediate?

Yes -- Please proceed to Question 2.
No -- Please skip to Question 3.

2. If you or your organization conducted an investigation, which of the following actions did you take?

3. Please provide information regarding the reasons why you are electing not to participate in the EEOC mediation program. Below is a list of possible reasons why companies elect not to participate in the program. Please review this list and place a check mark next to all that apply and indicate the importance of the reason in your decision not to participate in mediation.

For example:

 

 

---

 

 

QUESTIONNAIRE RETURN INFORMATION

Please FAX the completed questionnaire to 775-871-9056 (backup fax number is 410-990-0172) OR please MAIL the completed questionnaire to:
Dr. Anita Jose
MBA Director, Department of Economics & Management
Hood College, 401 Rosemont Avenue
Frederick, MD 21701

CONTACT INFORMATION

If you have any questions or comments about the survey, please do not hesitate to contact Drs. Jose or McDermott directly. Dr. Jose can be contacted via telephone (301-696-3691) or email (ajose@hood.edu). Dr. McDermott can be contacted via email at epmcdermott@salisbury.edu.

The key to a successful response rate for this survey is the telephone conversation wherein the Respondent declines to participate in the mediation. In this conversation the EEOC representative must obtain the consent and commitment of the declining Respondent to agree to complete the questionnaire. Without a doubt, the response rate will be directly related to your efforts. We request the following approach.

Distributing the Questionnaire

After it is clear that the Respondent has declined to participate in mediation, state something to the effect of:

"The EEOC is very interested in why your organization or the organization you are representing is not interested in mediation. Will you please help us by completing a confidential survey for the EEOC?"

If the person agrees to complete the survey, ask if they have completed a prior respondent survey since June 1, 2003. (We don’t want to have them confused about filling out any type of earlier unrelated EEOC survey) If they indicate they have completed our survey before, advise them you are sending them a SHORT version.

If they have not completed the survey before send the FULL version of the questionnaire.

1. Ask if you can immediately fax the survey to them; if they say yes, fax it. Please use the following paragraph on your fax cover sheet.

   "Dear Sir/Madam:
     Thank you for assisting the EEOC by completing a survey as to why you have declined to participate in our mediation program.  The survey results will allow us to improve our mediation program.  Thus, your participation will be very helpful to the agency.
     Sincerely yours,
    
   Name
   ADR Coordinator"

2. If the Respondent prefers to have it mailed to them, please do so within 24 hours, enclosing a return envelope addressed to Dr. Anita Jose, MBA Director, Department of Economics & Management, Hood College, 401 Rosemont Avenue, Frederick, MD 21701.

   Note: We want to strike while the iron is hot to maximize feedback.

3. If you do not already have the Respondent’s mailing address, obtain it, just in case the fax number does not work.
4. Important reminder: Write the charge number on the first and second pages of the survey.

If the person declines to complete the survey because they have completed the survey before (either for the same or a different respondent):

1. Offer to send the SHORT version of the questionnaire. Say something to the effect that:

   "The EEOC is very interested in why your organization or the organization that you are representing is not interested in mediating this specific charge. We have a very short questionnaire designed to obtain the organization’s reasons for declining to mediate this charge. Will you please help us by completing this confidential survey?"

2. If the person agrees, fax or mail the shortened version. See instructions above.
3. Please do not forget to write the charge number on the right-hand corner of pages one and two.

If the person still or simply declines to complete the survey:

1. Ask them why they declined to mediate this specific charge.
2. Record their reason for declining to mediate this charge on the attached "Weekly Survey Log"

Completing the Weekly Logs

As previously indicated, proper measurement of the survey response rate is, in part, dependent on you keeping an accurate log of each survey mailed or faxed. We need to know the recipient’s name and the charge number to be able to double-check for any duplication.

1. Please complete the logs on a weekly basis.
2. Please write the charge numbers legibly. The charge numbers are crucial in computing the survey response rate and generating demographic information about our sample.
3. Include only charges where the respondent declined mediation.

4. For each charge listed, indicate (a) whether the full version of the questionnaire was faxed or mailed, (b) whether the short version was faxed or mailed, OR (c) their reason for declining to mediate the specific charge. The latter applies to respondents who plainly refuse to participate in our survey.

   For offices involved in the pre-test: Note that this information is different from that of the pre-test weekly log. During the pre-test we were interested in why they declined to participate in our survey. This time we are interested in why they declined to mediate the specific charge.

5. At the end of each week, please forward the completed log pages to:

   Dr. Anita Jose
   MBA Director
   Department of Economics & Management
   Hood College 
   401 Rosemont Avenue
   Frederick, MD 21701
   

   .

   Or fax them to 775-871-9056. Should you encounter problems with this fax number our backup fax number is 410-990-0172.

Survey Documents

Each field office should have the following survey documents.

Survey protocol (this document)
Questionnaire A – the FULL version. This has a total of 7 pages, including our letter to the respondent.
Questionnaire B – the SHORT version. This has a total of 5 pages, including our letter to the respondent.
Weekly Survey Log – provides for 14 entries in two pages.

For Questions and Assistance During The Survey Period

Please do not hesitate to contact Drs. Jose or McDermott directly. Dr. Jose can be contacted via telephone (301-696-3691) or email (ajose@hood.edu). Dr. McDermott can be contacted via email at epmcdermott@salisbury.edu.

Footnotes