[Congressional Record Volume 140, Number 35 (Thursday, March 24, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: March 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
THE DUNLOP COMMISSION
Mr. DANFORTH. Mr. President, on April 6, 1994, the Commission for the
Future of Worker/Management Relations, or, as it is more commonly
known, the Dunlop Commission, will hold hearings to gather information
so that it can make recommendations on improvements in labor law
reform. The Commission is headed by former Department of Labor
Secretary and Harvard professor John Dunlop.
The Commission, which was formed by Secretaries Reich and Brown, has
been asked to provide answers to three questions. On April 6 it will
hear testimony regarding the following question: What (if anything)
should be done to increase the extent to which work-place problems are
directly resolved by the parties themselves, rather than through
recourse to State and Federal courts and Government regulatory bodies?
A measure which I introduced in the last Congress and intend to
reintroduce upon our return from the upcoming recess directly addresses
this question. This measure, the Employment Dispute Resolution Act, is
designed to provide an alternative to litigating employment
discrimination claims. When I first introduced this measure in 1992, it
was needed to ease the burden on the already overloaded court system
and EEOC. Since that time, the plight of the courts and the EEOC has
become steadily worse, and the need for this measure has become even
more desperate.
As EEOC Chairman Evan Kemp said in 1992:
Those who turn to the EEOC for relief will be forced to
wait nearly three years before the agency can resolve their
charges. A woman who files a charge of pregnancy
discrimination, for example, will not see the case resolved
until her child is in pre-school.
The practical implications of such a delay are horrendous.
They are horrendous not only for the charging party who feels
his or her rights have been violated, but for the business
charged with the alleged violation. An employer would be
faced with the administrative nightmare of producing
information to justify actions of three or four years
earlier.
Chairman Kemp's analysis was corroborated just last month by a GAO
report which reviews the EEOC's methods for investigating and
litigating discrimination charges. As reported by the GAO, by fiscal
year 1996, the processing time for a discrimination claim could more
than double. The GAO concluded that this delay can seriously injure
complaining parties.
The situation in the courts is also disaster. The Civil Rights Act of
1991 added jury trials for compensatory and punitive damages to both
title VII and the Americans with Disabilities Act. These valuable anti-
discrimination measures are naturally strong incentives to litigate.
Even before the enactment of these amendments, the number of private
employment discrimination suits skyrocketed over 2,000 percent between
1970 and 1990.
Increasingly, therefore, the courts are not viable as a responsible
enforcement mechanism. Finally, even if there were no problems of
overcrowded court dockets and delays, the adversarial nature of a
prolonged legal battle is so hostile that it overcomes most prospects
of resuming a productive work relationship after resolution of the
charge.
I think there is a better way. It is called mediation. In the Winter
1991-92 issue of The Journal of Intergroup Relations, a publication of
The National Association of Human Rights Workers, there is an article
called ``Mediation of Civil Rights Complaints: Win/Win.'' The author,
Clark Field, is a human relations specialist in Evansville, IN. He
explains, simply, accurately and compellingly, why mediation is a
superior method for resolving employment discrimination claims. I
agree. I ask that excerpts of Mr. Field's article be printed in the
Record following my remarks.
I hold no illusions that mediation will be successful in every case.
But under my bill, there really is no downside. This legislation does
not compel parties to mediate in all circumstances. However, where
either of the parties feels that a settlement can be achieved in
mediation, then the parties cannot proceed to litigate in the courts
without first trying to work out their differences in mediation.
We are all about to head home for a recess, after spending many long
hours in this chamber debating many diverse policy issues. I know that
we all look forward to spending time back in our own States and with
our families. While I recognize that this is not the time to engage in
a full-blown debate on this legislation, I did want to express my very
strong sense that the Dunlop Commission should consider a mediation
model, perhaps similar to the one I introduced on October 5, 1992. The
original text of my initiative, S. 3356, is in the record of that day.
I also invite my colleagues to join me next month when I reintroduce
a slightly modified and improved version of the Employment Dispute
Resolution Act with, I expect, support from both sides of the aisle.
There being no objection, the excerpts were ordered to be printed in
the Record, as follows:
Mediation of Civil Rights Complaints: Win/Win
(By Clark G. Field)
introduction
If you are not familiar with Mediation, let me first define
it and describe it as a process. Mediation is the coming
together of disputants with an unbiased facilitator (``third
party neutral''), who will assist both parties--although
there can be more than two disputants--in reaching an
agreement. The mediator absolutely makes no decisions, but
only facilitates consensus decision-making.
Mediation is not: compromise, negotiation, arbitration,
conciliation, nor striking a deal.
Mediation is: voluntary, immediate, future oriented,
confidential, hard on facts but soft on persons; conducted by
an unbiased, trained mediator; and respectful of disputants.
In a few months, I will have been writing ``VS'' on my
letters, questionnaires, fact-finding conference notes, and
investigative summaries for eight years. I am a Human
Relations Specialist/Investigator for the City of Evansville
and Vanderburgh County, Indiana, and I have written that
abbreviation ``VS'' thousands of times. Versus means
``against''; it means ``doing battle,'' ``overcoming''--
``VS'' means ``win/lose.'' Our society instinctively thinks
of suing, forcing, litigating, winning when it comes to
disputes.
When a person comes into our Human Relations office to file
a discrimination charge (ninety-five times out of one
hundred, it will be in the area of employment), the common
procedure is adversarial--only lately am I explaining the
mediation option. If both parties should be amendable, we
work out an informal resolution and, if the Complainant is
found to have made a good case for him/herself (received a
``Probable Cause'' ruling), there is a time set (maybe twenty
days) for reconciliation--these efforts I term ``hit and
miss'' affairs.
There is an inherent flaw in our system, in our adversarial
approach, and it is this. Typically, when the Complainant
``wins'' his/her case--proves discrimination because of race,
sex, color, religion, national origin, age, or handicap--she/
he will choose not to return to work for the same employer
(Respondent). The feeling is that things will not be the
same, that he/she will be picked on, or treated worse. Both
Respondent and Complainant are reminded that retaliation is
illegal, but Complainant still will be afraid to return to
the old position. Therefore, we can say that Complainant
``wins the battle, but loses the war.''
It is my experience that more anger and ill will are
generated by race discrimination charges than by any other
kind. When the Respondent receives the official charge, e.g.,
``John Jones VS. John Doe Corp,'' a combination of feelings
erupt in many employers, such as: anger, hostility, fear,
hurt, bellicosity, indignation, frustration, embarrassment,
defensiveness, vindictiveness, and maybe self-righteousness.
More than anything else, whites do not like for blacks to
point fingers at them and label them as discriminators and
racists. Maybe, back in the recesses of our genetic history,
guilt and fear linger as a remnant of slavery.
Is there a better way? Another route, other than ``VS''? A
win/win method of dealing with discrimination charges, where
the relationship of employer and employee may be maintained?
Maybe so. With Mediation, everyone wins.
* * * * *
problematic areas
1. The Motivation to Mediate
My experience has been that Complainant will usually
consent to Mediation, while Respondent is much more hesitant.
The reasons are pretty obvious, namely: Complainant has a lot
to gain, such as an immediate resolution of the complaint and
the repairing of the employer/employee relationship, while
the Respondent must deal with a number of obstacles,
including: fear of the unknown; fear of giving up power; fear
of compromising their position; and the traditional
dependence on legal counsel in such matters.
One of the challenges facing the mediator is that of
balancing the power. In a Title VII (employment) charge, the
power imbalance can be more pronounced than in any other
setting--a large corporation facing an unemployed, and
sometimes uneducated, ex-employee. But the more employers
realize that not only valuable time, energy, and expense can
be saved, but also valuable, trained employees can be ``kept
on board,'' the more they may choose the Mediation option.
In some Mediations, both parties, after they are familiar
with the ``Rules and Regulations of Mediation,'' are required
to sign an agreement ``to begin Mediation.'' This can be an
important tool for successful Mediation.
2. That Impartiality Be Ensured
The most important attribute of any mediator is
impartiality. If the investigator also serves as the
mediator, there may be a conflict of interest should no
agreement be mediated. For instance, if one of the
participants proves to be very difficult, later this may bias
the mediator/investigator.
In one of my mediations, I realized that Complainant, a
white woman, was prejudiced against her black co-workers. She
also appeared to have an emotional problem. As the Mediation
progressed she backed off, and no agreement was reached.
Because of this experience, I felt that she had no legitimate
discrimination charge--she was claiming handicap
discrimination. As it happened, we went to Mediation before
she filed a discrimination charge. Had she later returned to
file such a charge, I would have had to refer her to another
investigator.
Generally, the mediator and the investigator should be
different persons. In small offices, where there is only one
investigator, something would have to be worked out. Where
there is only an executive director and a secretary and where
the Human Relations Commission does not have the force of
law, as is the case in some rural Kentucky offices, Mediation
could be extremely expedient, if properly promoted.
3. Timeliness
There is always a time limit, usually well defined, for
filing discrimination charges. In Indiana, it is ninety days
from the last date of harm for local and state commissions,
and usually one hundred and eighty days for the Equal
Employment Opportunity Commission (EEOC). Since Mediation is
voluntary and unofficial, it is better for Complainant's
charge to be filed initially, in order to preserve the
timeliness. Then, when Mediation results in an agreement,
Complainant can withdraw his/her charge. Otherwise,
Complainant's timely filing could be compromised.
conclusion
At a time in the United States when cities and states are
experiencing a financial crunch and as we move into 1992,
when the Americans with Disabilities Act (ADA) will ``kick
in'' for handicapped persons--thus presenting enforcement
agencies with perhaps 30 percent more complaints--Mediation
can be a very ``timely'' process. With Mediation, the
possibilities are almost limitless. It empowers both employer
and employee to sit down together and solve their problems--
this way, both win.
While we have been focusing on discrimination in employment
in this paper, Mediation will serve a similar purpose in
other discrimination charges--housing, education, finance,
and public accommodations. In housing especially,
Complainants need immediate action, and the survey showed
that some offices use Mediation exclusively for housing
discrimination charges.
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