The U.S. Equal Employment Opportunity Commission

An Investigation of the Reasons for the Lack of

Employer Participation in the EEOC Mediation

Program

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

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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

I. Introduction

II. Research Methodology

A. The Questionnaire

1. Contents and Format

2. Pretest

3. The Survey Protocol

B. Response Rate

1. Overall Response Rates

2. Field Office Participation

III. Profile of the Employers, Representatives, and Charges

A. Employer Profile

1. Employer Type and Employment Size

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

B. 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

C. Charge Profile

IV. Results

A. Information on Charging Parties

B. Familiarity with the EEOC Mediation Program

C. 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

a. Charging Party’s Employment Status

b. Charging Party’s Legal Representation

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

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

e. Representative’s Familiarity with the EEOC Mediation Program

D. 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

a. Charging Party’s Employment Status

b. Charging Party’s Legal Representation

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

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

e. Representative’s Familiarity with the EEOC Mediation Program

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

F. Feedback From External Attorneys and Consultants

G. What the EEOC Could Have Done Differently

H. General Feedback

V. Conclusions

VI. Implications

Appendices

Appendix A. Questionnaire A (Full Version)

Appendix B. Questionnaire B (Short Version)

Appendix C. Survey Protocol

This page was last modified on December 10, 2003.

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