Last month, the EEOC released composite data of its “agency accomplishments” from fiscal year 2015. And as usual, the EEOC touted the number of charges “resolved” (92,641) and the amount of employer M-O-N-E-Y collected on behalf of “victims” ($525 million) of discrimination. In fact, Chair Jenny Yang, a plaintiff-side lawyer from California, claimed that
we demonstrated our strong commitment to working with employers to voluntarily resolve charges of discrimination by achieving the highest mediation and conciliation success rates in our history.
“Resolutions” and employer payouts in the EEOC’s mediation and conciliation processes make terrible proxies for progress toward equal employment opportunity, given (1) mounting statistical evidence of on-going job segregation patterns, race and gender-based wage disparities, hiring barriers and glass ceilings, etc.; and (2) the suffocating cost of defense on employers. Cost-of-defense (i.e., the non-recoverable attorneys’ fees and costs that employers bear to prove they did nothing wrong in the first place) now drives employers’ settlement deliberations more than any other factor, especially acknowledgement of risk or wrongdoing.
The EEOC appreciates employers’ cost-of-defense conundrum. Indeed, its personnel actively exploit this dynamic in the ADR (i.e., mediation) and conciliation (i.e., after an agency Reasonable Cause determination) processes. EEO Legal Solutions’ national survey of 800 “Respondent” practitioners revealed that EEOC mediators not only heavily relied on cost-of-defense to encourage “resolution,” they also brandished EEOC enforcement weaponry to exaggerate employers’ cost-of-defense estimates. Likewise, facts made public in Mach Mining v. EEOC underscored concerns we raised in Under the Surface of EEOC Enforcement: instead of a meaningful opportunity to discuss compliance issues and “make whole” relief, the EEOC’s conciliation process has degenerated into a perfunctory street mugging in which EEOC field personnel bluff, bluster and bully to maximize cost-of-defense payouts.
This informative webinar will examine the methodology and results of EEO Legal Solutions 2013-2014 survey, “What EEOC Mediators SAY to Make Employers PAY,” as well as published EEOC information that will cast considerable doubt upon the veracity of these common representations. This webinar will also explore the facts and the Supreme Court’s analysis in Mach Mining v. EEOC, and offer practical suggestions for diffusing and documenting common EEOC scare tactics in the conciliation process. When HR professionals and employment lawyers can better evaluate, counter, and dismiss these scare tactics, employers save money.