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Monday, June 2, 2014

Fox Rothschild Responds To My Post About EEOC Mediators

In all fairness, I wanted to provide an update. I posted Friday that Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs. The piece was about a claim made in a survey that EEOC mediators are biased against employers. Fox Rothschild posted the survey in their blog, then posted a guest piece by the author of the survey. I strongly disagreed with this assertion of bias, and explained why.

I then let Richard Cohen, the blog's author, know that I had posted the piece so he could respond. Here's what he said:
Good post. But neither my blog or firm have taken or take that position, or claim to take that position. The blog simply reported, I think faithfully, comments from both sides, without comment from me and without my taking sides. Generally speaking, that's my blog's general tenor.

And Ms. Archer has no association with my firm.

Although your post is likely good PR for us, nonetheless it is inaccurate.

Rich Cohen
In additional communications, Mr. Cohen advised that neither his firm nor he have taken a position on the topic, and that his blog expresses his views, not the firms. I’m delighted to hear that it is not Fox Rothschild’s or Mr. Cohen's position that EEOC mediators are unfairly biased toward employees. I certainly got a different impression from reading their blog posts. It's still concerning to hear these claims made about EEOC mediation, which I think is a worthwhile process.

If a well-respected firm like Fox Rothschild publicizes a study in their blog (and it is in the firm's official blog with Mr. Cohen listed as the author) that claims bias without questioning that study, or stating that their experiences with EEOC mediation were different, I think agreement with the study was implied. If the firm then posts guest a blog reasserting that bias without any positive comment about Fox Rothschild's or Mr. Cohen's own EEOC mediation experiences, I think readers may reasonably assume they agree with their guest's post.

I wonder if their clients and other employers now think that there really is a bias against employers in EEOC mediation. I wonder if employers will hesitate to agree to utilize EEOC's free process, despite the fact that a judge will order them to engage in mediation they'll have to pay for if they are sued. Will Fox Rothschild or Mr. Cohen take an official position as to whether they believe EEOC mediations are biased against employers? Will other management-side firms and lawyers stand up for EEOC?

Stay tuned.

1 comment:

  1. First, you have to look at the source. Law firms make their money in litigation, not at mediation with possibility of settlement. Having worked at big law early in my career, I am often skeptical of any advice by them that could result in more money in their pocket. This particular stance seems to scream to me (don't mediate with EEOC, but if you do, hire us to represent you or you will get bullied).

    Second, I agree that their blog suggested the EEOC mediators have a bias against employers based solely on a study that they failed to question (a very one-sided study). One of the first survey results cited to was: "Our survey revealed that EEOC mediators regularly threaten employers with "reasonable cause" determinations (73.7%), prosecutions (70%), and even systemic investigations (61%)"

    Anyone who has ever been in a mediation with the EEOC recognizes that the mediator pulls the "threat card" with both sides. To the employer "a reasonable cause finding might be issued, there could be penalties." To the employee "a no cause finding might be issued, you might collect nothing." All in the interest of settling. Of course the "study" does not look at what the EEOC says to the employees, because that is not the information they want to glean or the conclusion they want to arrive at.

    Furthermore, I am not so sure the "study" lays out anything you wouldn't expect a mediator to have as a tool - the ability lay out the risks to both sides and suggest settlement. I have been in many EEOC mediations representing employers and although I feel strongly that the current political administration is pushing EEOC claims more heavily (and therefore employers are at greater risk than ever) I do not believe the EEOC mediators have changed or are any different from private mediators, or that the risk of mediating is some how so much worse.


I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.