Mediation has become an integral part of the EEOC administrative process.
Mediation is the process by which a neutral third-party "mediator"
helps the employer and the employee, on both sides of an EEOC charge,
explore the possibility of settling the potential claims. It is not a
mandatory process, but it can be a good alternative to litigation, especially
During an EEOC mediation, the mediator (who is not an active investigator
on that charge) will travel back and forth between the different rooms
where the opposing parties are situated with their attorneys. The mediator's
task is to transfer offers and counteroffers back and forth between the
parties. As with nearly all litigation, emotions run high at mediations
as well. In the common effort to settle the case, the litigants are often
called upon to re-live certain events which led to the charge, while making
offers and responding to counteroffers. But what happens when those emotions
cannot be contained?
Control your temper or you just might lose your case.
Last year, Michael Benes was participating in an EEOC mediation of his
charge against his employer, A.B. Data Ltd., in Wisconsin. At the time,
Mr. Benes was still an employee of the company. During the mediation,
an offer was made by his employer that Mr. Benes was not happy with. He
then proceeded to the mediation room where his employer was and shouted,
"You can take your proposal and shove it up your ass and fire me
and I'll see you in court!"
The employer took him up on his offer and terminated him after the mediation
failed. Mr. Benes, of course, sued for retaliation because he was engaged
in the EEOC process at the time of the firing, which is protected conduct.
His employer subsequently filed a motion to dismiss the case, arguing
that Mr. Benes had been fired because he disrupted the mediation, not
because of the EEOC charge itself. The Seventh Circuit Court of Appeals agreed.
Behavior at mediation can be grounds for termination.
The court in this case reasoned that Mr. Benes "sabotaged" the
mediation. In fact, the court compared his actions to barging into his
boss's office and shouting, which would likely be considered insubordination.
The court determined that, since Mr. Benes could not cite a case holding
that misconduct during a mediation "must be ignored," his employer
was within its rights to terminate him for his conduct.
Was this a good decision?
It seems the court in
Benes v. A.B. Date, Ltd. has determined that there is no privilege on the part of an employee to
misbehave or engage in inappropriate behavior during mediation. However,
many see a problem with this Seventh Circuit decision. Most, if not all
mediation sessions in employment cases involve hot tempers and an excess
of emotion. And, while it is true that we all need to remain civil, the
consequences of losing one's temper should not include complete dismissal
of one's case.
If you have any questions or concerns about EEOC mediation or any other
issue regarding your employment, feel free to contact our firm either
online or by calling us at (205) 265-1880.