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1999 J. Disp. Resol. 153 (1999)
The Use of Mediation in Employment Discrimination Cases

handle is hein.journals/jdisres1999 and id is 159 raw text is: The Use of Mediation in Employment Discrimination Cases Matt A. Mayer* I. INTRODUCTION Over the last thirty years, the number of individuals protected in some fashion or another from discrimination has expanded to cover a large segment of the working population.' When an employee is terminated, the reaction of some protected individuals is to file a lawsuit claiming discrimination.' Because of the large number of employment discrimination cases filed, the Equal Employment Opportunity Commission (EEOC), the government agency entrusted with enforcing the various anti-discrimination statutes,3 has turned to alternative forms of dispute resolution to reduce its own backlog and the backlog of the court system generally.4 One method the EEOC has utilized recently to reduce its backlog is mediation.5 Mediation itself is not a bad alternative to resolving disputes; however, in the employment discrimination setting, mediation poses both real and theoretical problems. This Article will address the issues noted above. Part II discusses the realities for employers and employees created by the increased filing of employment discrimination claims. Part III encapsulates the procedural movement of a claim * The author, Matt A. Mayer, is an associate with the law firm of Holme Roberts & Owen, L.L.P. in Denver, Colorado. The author focuses his practice mostly in the area of employment and labor law. The author graduated from The Ohio State University College of Law where he was the Editor in Chief of the Ohio State Journal on Dispute Resolution and where he received the ABA/BNA Excellence in Labor and Employment Law Award. The author would like to thank the staff at Holme Roberts & Owen and, in particular, Joan Jacobson of the Holme Roberts & Owen Denver office, for their assistance in preparing this Article for publication. This Article was initially prepared for a mediation seminar taught by Professor Nancy Rogers at The Ohio State University College of Law. 1. See David C. Belt, Election of Remedies in Employment Discrimination Law: Doorway into the Legal Hall of Mirrors, 46 CASE W. RES. L. REv. 145, 155 (1995). 2. After all, no one wants to admit that his termination was justified, so not only do anti- discrimination laws provide relief to those discriminated against, but such laws also allow individuals to blame someone else for their termination. Just as there are employers that escape liability for discriminatory conduct, so too are there employees who receive unjust compensation due to the nuisance value of a discrimination charge. 3. The EEOC has jurisdiction of claims filed under the Equal Pay Act of 1963, 29 U.S.C. § 206d (1994); the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1994); the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794a (1994); the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071-1100 (codified as amended in scattered sections of 42 U.S.C.); Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e-2000h (1994); and Titles I and V of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101- 12213 (1994). See The U.S. Equal Employment Opportunity Commission, Laws Enforced by the EEOC (last modified Jan. 15, 1997) < http://www.eeoc.gov/laws.html>. 4. These alternative forms of dispute resolution can include conciliation, arbitration, summary jury trials, negotiation and, the topic of this Article, mediation. 5. 42 U.S.C. § 1981 note (1994) (Alternative Means of Dispute Resolution) (authorizing agencies like the EEOC to utilize alternative methods of dispute resolution).

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