Unilaterally rolled out by EEOC Chair, “pilot” projects hinder employee rights in discrimination cases
For Immediate Release
Contact: Andrea Hansen
Washington, D.C. – August 17, 2020 – The National Employment Lawyers Association (NELA), the nation’s largest legal association whose members exclusively or primarily represent workers, today urged EEOC Chair Janet Dhillon to discontinue two pilot programs that limit the rights of those who suffer from workplace discrimination, such as sexual harassment or race discrimination.
The impacted programs – conciliation and mediation – are forms of dispute resolution intended to encourage settlement rather than litigation. Despite the EEOC’s mission to prevent and remedy unlawful employment discrimination, the proposed changes favor employers by limiting investigation, potentially hiding systemic discrimination on the part of a particular employer or industry, and weakening the employee’s ability to obtain relief from the discrimination and fair monetary damages.
While labeled “pilot” projects, with respect to the conciliation program the modifications were implemented nationwide, a departure from typical EEOC protocol. The pilots were executed unilaterally by Dhillon, without input from the other EEOC commissioners on the bipartisan commission. With respect to the changes in the mediation program, there is no plan to increase the number of mediators, despite a rule change that will dramatically increase the number of cases that will go to mediation.
NELA urges the pilots be discontinued and the proposed changes scrapped.
Under Dhillon’s revisions to the conciliation process (a process required in the most serious discrimination cases), the employer would gain an advantage through the release of information to which they would not otherwise be entitled. Further, additional bureaucracy would be imposed on settlement negotiations delaying resolution of the case, and likely lowering monetary awards for those who have been harmed by discrimination. These proposed changes are especially troubling because only the most egregious claims are subject to the conciliation process.
The chair is also piloting revisions requiring that more cases be sent directly to mediation bypassing the EEOC’s important role in investigating charges. The EEOC investigation is critical because of its role in uncovering systemic discrimination. The proposed revisions will likely result in pervasive and systemic discrimination claims being treated as isolated cases, particularly for workers who have no representation.
In a letter sent to Dhillon, NELA stated, “It is…of grave concern to us that the pilot projects were instituted without consultation with the commissioners on this important bipartisan commission, and without rigorous examination of the effects of such a change on all stakeholders. The real-life effects of these changes on the workers who face workplace discrimination reach far beyond the chair’s role with respect to administration of EEOC policy.”
Public Meeting – 8/18/20
The EEOC is holding a public meeting Tuesday, August 18 at 10:00 a.m. PT/1:00 p.m. ET to discuss proposed rulemaking on conciliation. More information: https://www.eeoc.gov/newsroom/eeoc-hold-public-meeting-august-18. The meeting record is typically open for 15 days to allow for additional public comment.
About the National Employment Lawyers Association (NELA)
Founded in 1985, the National Employment Lawyers Association (NELA) is the nation’s largest bar association whose members exclusively or primarily represent workers to ensure the preservation of their rights. The organization provides continuing legal education, works to ensure a fair judiciary, and advocates for laws and policies that promote justice for workers. NELA members have represented tens of thousands of individuals who have experienced injustice in the workplace.