Preparing for EEOC Mediation and PHRC Fact Finding Conferences

by George Barron

Preparing for EEOC Mediation and PHRC Fact Finding Conferences

When you have a discrimination or retaliation claim before the PHRC or EEOC, you may receive notice that a conference has been scheduled.  At the PHRC this will most likely be called a “Fact Finding Conference.”  At the EEOC, it will most likely be a mediation.

In reality, both of these are settlement conferences.  The idea is that you will sit down with people from the EEOC/PHRC as well as representatives of your employer – typically their lawyer, their Human Resources person, and your immediate supervisor.  The goal and hope is that the EEOC/PHRC representative will help everyone reach a settlement of the case that will allow the case to be closed.

I hate to say this, but this kind of meeting is dangerous ground for employees – particularly if they do not have their own lawyers.  In theory, the EEOC/PHRC is on your side – after all, their job is to enforce the law, isn’t it?

It is, but I fear that they have forgotten that fact.  In reality, the EEOC/PHRC is, at best, neutral.  Often in these meetings, it appears to me that the EEOC/PHRC, consciously or otherwise, takes the side of the employer.  After all, the employer knows the legal language, and controls all of the documents and most of the witnesses.  The employer has a huge advantage at the PHRC/EEOC level, and too many PHRC/EEOC employees forget that.

If you find yourself facing such a meeting, here are some things to keep in mind:

1.  Make sure the employer will attend.  These meetings are generally not mandatory and employers often refuse to attend.  Your should ask the agency to confirm that the employer will attend.  I have spoken to several people who drove to Philadelphia or Harrisburg only to find that the meeting was not happening.

2.  Understand what can and cannot happen at the meeting.  The employer is not going to admit fault.  The employer is never going to apologize.  The EEOC/PHRC person is not going to take your side and call the employer out for all the horrible things it has done.

The point of the meeting is to try to resolve the case with a settlement.  As with any settlement, it is important to understand what motivates the other people in the room.  Think about what everyone else wants.  The EEOC/PHRC wants the file closed.  The employer wants to close the case, stay out of court, and pay as little as possible to do so.

So, what do you want?

3.  Know what you want.  It seems simple enough, but you should walk into the meeting knowing exactly what you want to see happen.  If you are still employed, that means what changes in the workplace you need to see in order to drop your claim.  If you are no longer employed, or considering leaving, that means exactly how much money you want in order to release the employer from liability.  If you walk into the meeting without knowing what you want, you might walk out with something you don’t want.

4.  Be ready to state your case.  The EEOC/PHRC staff that run these meetings will often ask you to state the reasons why you filed your complaint.  Often, this is one of the first things that happens in the meeting.  When you begin speaking, everyone else in the room – the EEOC/PHRC person, and particularly the employer – is measuring what kind of witness you will be in court.  If you seem confused or hesitant it weakens your case.

This is a very intimidating situation, but it is only a small taste of what lies ahead if you go to court.  You have to be assertive but not angry; confident but not rigid; cool but not cold.  It’s a tough balance.  You should practice.

Of course, you need to look like you are going into court as well.  Professional dress, professional hygiene, etc.

4.  Bring your notes and documents – and a grain of salt.  These meetings are not recorded, and everyone enters into a confidentiality agreement before they begin.  There are a lot of good reasons for this, but unfortunately it gives the employer license to lie.  They always lie to the EEOC/PHRC person, and they often lie right to your face.  Pull on your boots and get ready to wade through some . . .um . . .stuff.

The EEOC/PHRC person may believe the employer’s “stuff”.   Don’t let that bother you.  If you can, take the opportunity to show that the employer is lying.  It is a beautiful thing when the employer lies and you can prove it, then and there, with a document.

Keep in mind also that, as I said before, the EEOC/PHRC person probably leans toward the employer.  Think about what is in the file that he or she reviewed before the meeting.  On your side – your claims, probably hand-written, without any citation to legal authority and without any documentary evidence.  On their side – a legal brief prepared by an experienced attorney, copies of Official Policies that say that employer NEVER discriminates, sworn statements from several respected members of management, and piles of documents that they cherry-picked from your personnel file.  It’s not fair.  Good mediators understand that, but not all mediators are good mediators.

5.   Bring a lawyer if you can.  If you have a lawyer, he or she should attend with you.  If you don’t have a lawyer, this is the time to get one.  A lawyer can review your case, help you prepare for the meeting, help you make the right legal arguments, help you value your case, and help make sure that you do not sign a settlement agreement that you will regret.

Don’t hire the lawyer that helped your uncle with his real estate closing.  Hire an employment rights lawyer – one who understands this area of law and has experience in these kinds of cases.

If you have questions, take a look at my Secret Employee Handbook or call me at 570.824.3088.


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