Using Mediation to Address Sexual Harassment Claims in the Work Place

Sexual harassment continues to be a serious problem in the work place in terms of the number of claims being filed, the new types of claims filed, and the cost to the employer. The Equal Employment Opportunity Commission (EEOC) reported that in fiscal year 2003, it received 13,566 sexual harassment claims. Employers tend to think that these claims are only filed by women but there are an increasing number of men who are also filing claims. For example, in fiscal year 2003, 14.7% of the sexual harassment claims filed with the EEOC were filed by men. In addition, employees are now allowed to bring claims against persons of the same sex. These claims can be very costly. The Federal Government reported in 1994 that it had paid $267 million for sexual harassment adjudication for the previous two years, and in 1997 that amount had increased to$327 million for the previous two years. The EEOC reported that in fiscal year 2003 it obtained $50 million in settlement dollars for persons who filed complaints with the EEOC, and this figure does not include monetary awards obtained through litigation

Comparison of Employment Disability Discrimination Claims with Other Statutes Across U.S. Equal Opportunity Commission and Fair Employment Practice Agencies Nationally

Although 15 years have passed since the employment provisions of the Americans with Disabilities Act of 1990 (ADA) became effective, significant employment disparities for persons with disabilities persist. It is important to assess how employer policies and practices may contribute to this disparity. Analyses of employment-related discrimination claims and subsequent legal outcomes are an important source of information about where and how disability employment discrimination is perceived to be happening. Examining the disability employment discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) and Fair Employment Practice Agencies (FEPAs) within states can inform an understanding of where specific issues continue. This research uses the EEOC\u27s Charge Data System (CDS) (later called the Integrated Mission System, IMS) to explore difference between the filing of discrimination claims at EEOC offices and state FEPA offices. To date, most analyses of these charges have occurred on the EEOC charge data only. Yet of the 328,001 disability employment discrimination charges filed across both agencies during 1993 – 2003, almost half (46 percent) of these charges have been filed in FEPA offices. Analyzing both sets of data provides a fuller picture of disability employment discrimination claims nationally and subsequently further informs our understanding of where problems may be occurring in the implementation of the ADA Title I provisions. For more information, Contact Susanne Bruyère: [email protected]

Proposing a New Paradigm for EEOC Enforcement after 35 Years: Outsourcing Charge Processing by Mandatory Mediation

After more than thirty-five years of existence and the quickly approaching thirty year anniversary of the amendment that was intended to transform the EEOC from being a toothless tiger of an enforcement agency, the EEOC must now adopt new paradigms for enforcement. Those new paradigms must concentrate on limiting or removing any ongoing focus on charge processing and switching the focus to long-term enforcement initiatives. To accomplish that objective, this Article proposes that the EEOC outsource a significant portion of its charge processing responsibilities to private mediation, an informal process by which a neutral party works with the interested parties to craft a mutually agreeable resolution to their dispute. Then the EEOC can start to shift the focus of its budgeted employees and its fixed expenses from charge processing to developing stronger enforcement initiatives, especially with tester programs that will help tackle the systemic wage discrimination barriers that exist in our country. The goal of this Article is to promote critical thinking about the practical effects that mandatory and private mediation of EEOC charges will have in making the EEOC a stronger enforcement agency. Part II of this Article discusses the historical development of the EEOC and its lack of enforcement power. Part III addresses the significant accomplishment of amending Title VII to give the EEOC enforcement powers in 1972. Part IV examines how the EEOC has continued to be bogged down by the initial label of being a charge-handling agency and how that label has allowed critics to limit the EEOC\u27s enforcement power. Part V of this Article proposes a simple amendment to EEOC procedures and the congressional approval of legislation that would provide for private mandatory mediation of EEOC charges. In Part VI, the Article argues that congressional efforts to prevent certain EEOC initiatives-including private mandatory mediation-by reducing overall EEOC funding should be limited to actual amendments to Title VII. Congress should not use the annual budgeting process to hold certain EEOC enforcement initiatives hostage in exchange for money needed just to allow the agency to function. The Article concludes in Part VII that private mandatory mediation will assist the EEOC by creating a new paradigm for long-term enforcement initiatives

Title VII and Flexible Work Arrangements to Accommodate Religious Practice & Belief

This timeline tracks the development of the religious accommodation requirement of Title VII of the Civil Rights Act of 1964. The timeline covers the development of statutory text, relevant EEOC regulations, and Supreme Court precedent

Arbitration Agreements between Employers and Employees: The Sixth Circuit Says the EEOC Is Not Bound - EEOC v. Frank\u27s Nursery & (and) Crafts, Inc.

In Frank\u27s Nursery, however, the EEOC pursued court action against an employer that included monetary relief for the employee even though there was an individual arbitration agreement between the employer and employee.5 Should the arbitration agreement restrict the EEOC from bringing such action? Currently, there is a split in the circuits on this issue. According to the Sixth Circuit in Frank\u27s Nursery, the EEOC is not bound by the arbitration agreement and, therefore, can pursue court action against the employer that includes monetary relief on behalf of the employee.6 The Second Circuit, however, has not allowed the EEOC to pursue monetary relief in this situation Considering that monetary relief is a valuable remedy for the EEOC in pursuing its goal of promoting the public interest of preventing unlawful employment discrimination and that this goal differs from the goal(s) of an individual employee, the Sixth Circuit properly found that an individual arbitration agreement between an employer and an employee should not limit the enforcement options of the EEOC

News Briefs: Congressional Review of EEO Reorganization Plan, 1979

Report on Presldent Carter\u27s proposed federal Equal Employment Opportunity Commission reorganization plan to consolidate most of the government\u27s enforcement programs into EEOC over the years 1978-1980. April 26, 1978. No 17

A Business Alternative: Changing Employers\u27 Perception of the EEOC Mediation Program

This paper will reveal employers\u27 perception of the EEOC Mediation Program and offer viable changes that may encourage more employer participation in the mediation program. Although the mediation program is supposed to be fair and neutral, the possibility of favoritism, bias, prejudice, or the perception thereof remains high because of the mediation program\u27s structure. If the EEOC were to make changes to its program that also creates a perception of impartiality, then employers would be more willing to participate. To demonstrate this, Part II of this article will begin by discussing the history of the EEOC from its initiating mandate to its current form. Then, Part III will cover EEOC mediation by explaining how the process works and its limitations. Part IV will display statistics concerning the mediation program\u27s work volume and resolution rates, and Part V will discuss reasons why employer participation in the mediation program is so low. Part VI of this article will then discuss the components needed to facilitate a fair and impartial mediation, and whether or not the current EEOC Mediation Program possesses those components. Lastly, Part VII will provide a feasible solution that could eradicate any impropriety, or perception of impropriety, in EEOC mediations

Ruminations About the EEOC’s Policy Regarding Arbitration

This paper addresses the Equal Employment Opportunity Commission\u27s current policy statement against the use of mandatory arbitration which is now more than ten years old. Quite a lot has occurred since the 1997 statement in which the EEOC criticized employers who attempted to require that employees agree as a condition of employment to arbitrate their statutory employment discrimination claims. Since 1997, the Supreme Court has issued opinions in both Circuit City v. Adams and EEOC v. Waffle House that should have clarified the EEOC\u27s position. The author explores the reasons why the EEOC has still not taken a clear position and updated its policy regarding enforcement of agreements to arbitrate when made as a condition of employment. The paper identifies a number of legitimate and possibly some not so legitimate factors that have stymied the EEOC from being a leader in the ongoing development of critical processes to ensure fair enforcement of arbitration clauses. The author concludes, however, that we have reached a crucial juncture where failure by the EEOC to define a supportive policy may not bode well for the overall future use of arbitration in employment discrimination matters. While any EEOC policy may not ultimately reflect what the courts eventually decide on many of the remaining issues, the influence of the EEOC on employees and employers, both small and large, can foster and encourage the positive aspects of resolving statutory employment discrimination claims through the arbitration process. It is incumbent upon the EEOC, as the critical government agency charged with enforcing key statutes that ban workplace discrimination, to set a clear policy addressing the fairness of arbitration clauses. That policy must provide guidance regarding many of the still unresolved issues such as class actions, arbitrator\u27s fees, and other requirements that must be established to effectively vindicate employees\u27 statutory rights in the arbitration forum