Font size: bigger | smaller

Do I need an attorney for an EEOC mediation?

This guide is for information only and is not legal advice. Legal advice must be tailored to specific facts. This guide is based on general legal principles and does not address all possible claims, exceptions or conditions related to the subject matter discussed.

by Marilynn Mika Spencer

In nearly every case, yes, you need your own attorney. The EEOC is not your representative. A mediator for the Equal Employment Opportunity Commission (EEOC) has one client – the United States of America. Some EEOC mediators are great and will do their best to protect you rights even though they are not your advocate. Some EEOC mediators stink and care more about closing the case than they

Because the EEOC has a particular mission and because it is not representing you, if it turns out your interests and those of the EEOC clash, the EEOC mediator will first and foremost make sure the agency’s goals are carried out, not yours.

Also, the EEOC will only consider issues relevant to laws the EEOC enforces, such as discrimination laws. It will not consider such things as employer liability under state law (which in some states, like California, is substantially more than under federal law), wage and hour violations, mutuality in the settlement agreement, circumstances under which you might have to return the money, the language of the settlement agreement (which could have all kinds of "gotchas" that the EEOC doesn't notice or doesn't deal with), and more.

In addition, EEOC mediators most often handle low-value cases because that is what ends up in their offices. They handle high-value cases far less frequently, and even less frequently handle high-value cases where the charging party doesn’t have an attorney. If you show up without an attorney, the mediator may interpret your case as low-value, even if it isn’t. Of course the mediator may learn the value of your case during the mediation, but why start off with such a large obstacle?

Similarly, without an attorney, the employer probably won't take you or your case seriously, and may be able to take advantage of you. No one is watching your back if you don't have your own attorney.

Consider that the employer most likely has an attorney or has consulted with its attorney. Even if the employer doesn't have an attorney, it usually has human resources personnel who have been down this route before and know far better than you do how to use the system to its own advantage.

It is nearly always the case that a charging party will do better overall with an attorney, even taking into consideration the attorney's fees portion of the recovery.

Contact Us

Spencer Johnson McCammon LLP
2727 Camino del Rio South
Suite 140
San Diego, CA 92108
Phone: (619) 233-1313

Spencer Johnson McCammon Weekly

Spencer Johnson McCammon Weekly

Topic of the Week

Retaliation for Union Activity/Collective Action

Read more...

Blog of the Week

How Workplace Rights Could Change for Remote Workers

In every civil society, certain rights have been put in place to guarantee equity and fairness for all. The same goes for every workplace. Every employee has certain rights that they are entitled to that provide a safe and non-toxic environment where they can thrive and excel.

Thought for the Week

"With many companies operating remotely due to the coronavirus pandemic, it is more important than ever for sexual harassment policies to explicitly prohibit harassment across all forms of digital communication and media to account for all the ways people can interact with each other virtually."

–Edgar Ndjatou | WF Director

List of the Week

from Center For Economic & Policy Research

Disability and Employment in the Time of Coronavirus

  • Majority of people ages 18 to 64 with disabilities were not employed between April and June of 2019.
  • The EPOP gap between those with and without disabilities continues to hover at around 40%.
  • The decline in EPOP during the pandemic has been much more pronounced among those with ambulatory, independent living, and personal care difficulties.

Top Five News Headlines

  1. 167k workers added to private payrolls in July as US labor market rebound slowed: ADP
  2. Workers find ‘better’ jobs for their qualifications when unemployment insurance is extended, according to new study
  3. Court Ruling Could Prove Costly, Remove Home Care Agencies from FFCRA ‘Exemption List’
  4. KY women alleged hiring discrimination by Walmart. Retail giant to pay $20 million.
  5. Physician Late Career Policies Under EEOC Attack