Wednesday, January 27, 2021: Policy Differences Erupt: EEOC Pilot Programs End Early–Virtual Mediations Stay
The Equal Employment Opportunity Commission (EEOC) announced the conclusion of its conciliation and mediation pilots, both announced in July 2020.
According to the press release, “The Commission will incorporate into the mediation program some of the practices the agency has found useful over the past several months, including the use of video technology to hold virtual mediations whenever possible. Pilot participants generally, and employees in particular, expressed an overwhelming preference for video mediations over audio-only conferences. The EEOC will also continue to send electronic surveys to program participants who are able to respond electronically and will incorporate feedback from participants and agency mediators on how to improve virtual mediations. Finally, the parties may request mediation at any point during the administrative process.”
Editor’s Note: This story points up not just the power of the EEOC Chair position, as constituted under Title VII, to have the sole power to make decisions “for the administrative operations of the Commission”, but also that there are real differences between Democrats and Republicans as to enforcement strategies and policies. As we pointed out in our WIR story last week, Title VII itself prescribes special powers to the EEOC Chair. In that January 20, 2021 story, we reported that President Biden had hit the ground running on Inauguration Day by announcing, among many other things, his selection of EEOC Commissioner Charlotte Burrows (D) to now Chair the Commission and Commissioner Jocelyn Samuels (D) to assume the Vice-Chair position. With that change in Commission jobs, the Democrat Commissioners have now been able to reverse the Commission’s position on the two EEOC Pilot Programs despite being outgunned 3 Republicans to 2 Democrats on the Commission. This show of force and will shows that the Democrats do still have some power on the 5-Member bi-partisan Commission, even though Burrows and Samuels can be outvoted 3-2 (and will continue to be outvoted through at least July 1, 2022) by Republicans on matters which come before the Commission. Please recall that only three weeks ago–on January 6th, (before Inauguration Day), the Commission announced it was pleased with both pilot programs designed to increase Commission transparency to employers and to hopefully resolve a greater percentage of disputed Charges on a voluntary basis. Indeed, then EEOC Chair Dhillon announced with great pleasure that the Commission was EXTENDING the two Pilot Programs through September 30, 2021 as we reported here, despite concerted opposition from Commissioners Burrows and Samuels. For more on this “running gun battle” between Republicans and Democrats, please see our prior WIR stories on this developing policy difference between “showing your cards” in mediation and conciliation vs holding that information back for use at an agency trial: December 31, 2020 (First EEOC Meeting of the Year); August 18, 2020 (Lone Commissioner Dissents). Please also recall that we have written several WIR stories too, about the OFCCP struggling with this very same policy issue, in parallel, at USDOL. The tug-of-war continues.