Dickinson Law Review
After more than thirty-five years of existence and the quickly approaching thirty year anniversary of the amendment that was intended to transform the EEOC from being a "toothless tiger" of an enforcement agency, the EEOC must now adopt new paradigms for enforcement. Those new paradigms must concentrate on limiting or removing any ongoing focus on charge processing and switching the focus to long-term enforcement initiatives. To accomplish that objective, this Article proposes that the EEOC outsource a significant portion of its charge processing responsibilities to private mediation, an informal process by which a neutral party works with the interested parties to craft a mutually agreeable resolution to their dispute. Then the EEOC can start to shift the focus of its budgeted employees and its fixed expenses from charge processing to developing stronger enforcement initiatives, especially with tester programs that will help tackle the systemic wage discrimination barriers that exist in our country.
The goal of this Article is to promote critical thinking about the practical effects that mandatory and private mediation of EEOC charges will have in making the EEOC a stronger enforcement agency. Part II of this Article discusses the historical development of the EEOC and its lack of enforcement power. Part III addresses the significant accomplishment of amending Title VII to give the EEOC enforcement powers in 1972. Part IV examines how the EEOC has continued to be bogged down by the initial label of being a charge-handling agency and how that label has allowed critics to limit the EEOC's enforcement power. Part V of this Article proposes a simple amendment to EEOC procedures and the congressional approval of legislation that would provide for private mandatory mediation of EEOC charges. In Part VI, the Article argues that congressional efforts to prevent certain EEOC initiatives-including private mandatory mediation-by reducing overall EEOC funding should be limited to actual amendments to Title VII. Congress should not use the annual budgeting process to hold certain EEOC enforcement initiatives hostage in exchange for money needed just to allow the agency to function. The Article concludes in Part VII that private mandatory mediation will assist the EEOC by creating a new paradigm for long-term enforcement initiatives.
Dickinson School of Law
Michael Z. Green,
Proposing a New Paradigm for EEOC Enforcement after 35 Years: Outsourcing Charge Processing by Mandatory Mediation,
Dick. L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/529