by Christina J. Fletcher

The Equal Employment Opportunity Commission (“EEOC”) has increased its efforts to encourage large corporations to enter into Nationwide Universal Agreements to Mediate (UAM).  To date, more than 200 private-sector employers, including several Fortune 500 companies, have entered into UAM agreements with the EEOC at the national level.  Additionally, EEOC district offices have entered into 1,743 mediation agreements with employers at the local level.

The EEOC’s focus on UAMs, which apply to individual-charges of discrimination, but not to class and systemic charges, is aligned with the EEOC’s publicly stated priority of combating systemic discrimination.  If more individual charges can be resolved through mediation, then the agency can focus its limited litigation resources on larger-scale, systemic pattern and practice cases.

The UAMs provide that any eligible charges of discrimination filed against the employer with the EEOC will automatically be referred to the EEOC’s mediation unit.  There, the parties will attempt to resolve the workplace dispute before the EEOC commences an investigation.  The agreements require companies to designate a corporate representative to handle all inquiries and other logistical matters related to potential charges to facilitate prompt scheduling of the matter for mediation.

The EEOC touts the benefits of UAMs for employers.  According to Nicholas Inzeo, Director of the EEOC’s Office of Field Programs, “[n]ationwide mediation agreements like this are a classic win-win.  []UAMs are a non-adversarial and efficient way for companies to handle discrimination charges using the EEOC as a partner and advisor.  EEOC mediation encourages a positive work environment, and the company saves time and money.  Everyone benefits.”  The EEOC reports that it conducts approximately 12,000 mediations annually; resolves about 70% of those charges; and in 13% to 20% of those matters, the settlement involves a non-monetary resolution.

Fortune 500 employers that have signed a UAM describe the appeal of the program as highlighting corporate commitment to diversity and equal employment opportunity, developing a stronger working relationship with the EEOC and demonstrating to employees that the company wishes to effectively and fairly resolve employee complaints.  UAMs are confidential unless an employer has agreed to make the agreement public.  A list of employers who have agreed to publicize their UAMs is available here.

One significant drawback of the UAM for employers is that the charging party is not required to participate in mediation and can opt-out, sending the charge to the enforcement unit for investigation.  In addition, class and systemic charges, charges filed under the Genetic Information Non-Discrimination Act, and those filed solely under the Equal Pay Act are all ineligible for mediation under the UAMs.  The EEOC also has the discretion to withhold charges from mediation in cases in which it decides that the public interest would be served by an investigation.

As the EEOC pushes employers towards embracing the UAM model, employers will need to weigh the costs and benefits of such a blanket agreement to mediate nearly all charges to determine whether it makes sense for their company.