Observations on Mediating Disputes Involving Sexual Harassment:

Richard D. Fincher, Mediator
Workplace Resolutions LLC

The law of sexual harassment
The general definition of sexual harassment is “undesired attention motivated by some sexual attraction that creates distress and detracts from one’s ability to perform the job.”  There are two forms of workplace harassment, one involving tangible employment actions and the other involving the workplace environment. The vast majority of harassment claims are based on Title VII of the federal Civil Rights Act of 1964, as amended.

Scenario
Susan has worked as an account manager selling office equipment for three years.  Her career was progressing without incident for the first two years. Last year, the owner of the company assigned his twenty-five-year-old son John to manage the division in which Susan was employed. Since that point, Susan has felt harassed by the son. John openly refers to Susan as his “mistress” and puts his arm around her at company events. He privately talks about them “sleeping together someday.” He works alone with her on Saturday mornings in the office, sitting across from her desk and glaring at her. He asks her highly personal questions.

Susan verbally complained to the human resource (HR) manager and has shared her dissatisfaction with two other female co-workers. The HR manager informed the owner, but nothing was done. Due to her work conditions, Susan started therapy with a psychologist, incurring documented medical expenses. Three months ago, Susan was laid off in a general downsizing. She is seeking reemployment elsewhere. She refused to sign the employer’s standard release for one month of compensation and has filed suit in federal district court alleging sexual harassment. The employer claims Susan was flirtatious on the job and has countersued for theft of customer lists.  You are the mediator. How would you proceed?

Quid pro quo sexual harassment
“Quid pro quo” means “this for that.” Quid pro quo harassment involves basing an employee’s discharge, demotion, adverse reassignment, or other negative employment action on his or her unwillingness to engage in activity related to a protected characteristic, such as gender. Alternatively, a supervisor may link tangible terms of employment to the employee’s willingness to engage in such activity. For example “Sleep with me and you will get promoted and a large raise.” Stated otherwise, quid pro quo harassment occurs when the employee is subjected to unwelcome sexual advances, and submission to such conduct is made explicitly or implicitly a condition of employment or advancement, or rejection or submission to such conduct is used as a basis for employment decisions.

Hostile work environment
The second form of sexual harassment involves conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. Pervasive joking, sexual remarks, intimidation, sexual gestures, or a display of offensive cartoons or magazines are common examples. A hostile work environment is more common than tangible employment actions.

The elements of a hostile work environment complaint are different from that of quid pro quo in several ways. First, the conduct may be caused by co-workers or customers, not just supervisors. Second, the motivation may not be sexual in nature, but rather based on gender animus or sex-based stereotyping. Third, the plaintiff is not required to demonstrate a tangible job detriment, such as discipline or discharge.

There are several core concepts involved in hostile work environment claims. The threshold concept is that the harassment must be sufficiently severe, pervasive, and unwelcome to create liability. There is no objective test for determining liability: each case requires a fact- and context-specific analysis. Single acts can rarely create a hostile work environment unless extraordinarily severe. Most employers passionately deny that the conduct described was severe or pervasive.

Who are the harassers?
In the majority of disputes, the immediate supervisor is named as the harasser. In other cases, the harasser can be a co-worker (either a different sex co-worker (e.g., male versus female), a same sex co-worker) or a supervisor in a different department. In rare occasions non-employees are named as harassers, such as vendors (delivery persons or repair technicians) or even regular customers.

Levels of harassment
This mediator has observed there are several conceptual levels of alleged harassment. For purposes of illustration, here are four levels, with increasing potential liability on the employer. The first level is “general boorishness.” This workplace conduct involves untargeted stupid comments, offensive workplace humor, cartoons on the wall, or generic cursing. The conduct is offensive but not humiliating. Generally, these unwelcome acts are not targeted at the plaintiff, but clearly involve co-workers, as well as the plaintiff.

The second level involves “crude and extreme boorishness,” still not targeted at the plaintiff and with no physical touching. Examples involve open masturbation in staff meetings among same gender, extreme cursing remarks, and hard pornography on computers for everyone to view. General harassment by non-employees and non-direct supervisors often fall into these two levels of harassment.

The third level of harassment involves “targeting” the plaintiff with offensive and sophomoric behavior, which may include physical touching. This level involves comments targeted only at the plaintiff, repeated requests for dates, offensive e-mails, soft pats on the butt, unwelcome neck massages or bear hugs. This level may include an implicit demand for sexual favors, without an adverse action such as demotion or lower performance evaluations.

The fourth and most severe level of harassment involves a variety of offensive conduct: significant physical touching, egregious co-worker shunning, workplace assaults, or the explicit demand for sexual favors linked to a tangible job detriment. This level often involves physical touching to the neck or face or even physical coercion, such as grabbing the plaintiff in a headlock and rubbing her hair. Battery is common. Rape is the extreme measure of such unlawful conduct. This harassment is often followed either by the plaintiff’s discharge for alleged poor job performance or the plaintiff’s resignation. This level of harassment generates the greatest liability.

Common employer defenses
In 1998, the U.S. Supreme Court set forth explicit guidelines on liability of harassment cases. The Court held an employer is strictly liable for a supervisor’s conduct, providing it is severe or pervasive and culminates in an adverse employment action. Referred to as the Faragher/Ellerth defense, an employer can avoid liability for harassment by its supervisors by proving that

• the employer exercised reasonable care to prevent and correct promptly any harassing behavior; and
• the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunity provided by the employer or to avoid harm otherwise. (vi)

Remedies
Sexual harassment claims can provoke several forms of damages, subject to the statutory provisions. The most basic remedy involves direct loss of income, typically back pay from the date of termination. This compensation includes not just straight lost income, but money for the lost opportunity of wage increases and promotions.

The second form of damages involves prospective compensation intended to enable the plaintiff to find a new job, referred to as front pay. This remedy is awarded when reinstatement is not practical because of employer hostility, or because there is no longer a job. Pursuant to case law, front pay should only be of sufficient duration for the victim to find comparable work.

Employers may face affirmative relief beyond financial damages, however, such as mandatory harassment training, creating a harassment hot line, establishing an ombudsperson, drafting new human resource policies, or employee assistance counseling. This relief can have a significant cost to the employer.

When are mediations held?
When is a dispute “ripe” for mediation? Generally, there are several prerequisites. Counsel must have had sufficient time to gather basic information and be able to value the case. Both parties must be in a mindset to meet and discuss settlement; sometimes they need to recognize the realities of litigation before concluding that ADR is a viable option. Finally, the timing of mediation must align with the procedural stage of the litigation. Some employers, for example, defer mediation until after a Motion for Summary Judgment (MSJ) has been denied by the court.

Who should be present during mediation?
Determining who should attend mediation requires careful consideration. The key players in harassment cases may include the victim, a management representative, the insurance representative, and support people, such as spouses and family members. The victim may be heavily influenced by two groups of friends or colleagues: (a) those that possess a decisive vote on any proposed settlement, and (b) those who oppose any settlement.

Challenges in mediating harassment claims
In most employment mediations, the role of the mediator is to assist the parties to value the case at a dollar number within the zone of settlement. Numerous variables come into play in determining the value of a harassment case. These include: (a) facts establishing severity or pervasiveness of the conduct, (b) existence and availability of witnesses, (c) sensitivity of the employer to negative press if the case does not settle, (d) extent of medically established damages, (e) anticipated credibility of the plaintiff at trial, (f) whether the plaintiff is out of work and demands front pay, (g) adequacy of the investigation and corrective efforts, and (h) evidence of victim’s rejection of any harassment or, on the contrary, willing participation in the incidents.

Extenuating realities in mediation
Occasionally, the plaintiff is self-represented. This creates several ethical dilemmas for the mediator. The concern is that the pro se litigant may be emotionally damaged and unable to make the serious decisions required in the process. Some mediators simply decline these cases because of this concern.

Psychology of plaintiffs in mediation
Plaintiffs come in all shapes and sizes, but most of these victims are reluctant litigants. Many are humiliated, some are in shock, and some are devastated and debilitated.  Some view the demotion, reassignment, or lay off as a last straw. Many mention the “invisible damages,” referring to subtle psychological effects. In the extreme, some plaintiffs have sleep deprivation problems and flashbacks. Many do not want to see the harasser, and so do not want to attend the opening joint session. Some do not wish to participate in mediation at all.

Psychology of defendants in mediation
Employers generally do not deny that something regrettable has happened, but they strenuously deny that the supervisor or co-worker conduct was severe or pervasive or that local management was aware of the alleged coworker harassment. Some employers are influenced by the fear of publicity if there is no settlement and the EEOC files suit with a press release. Others fear that discovery will become a disruptive witch-hunt. Most harassment cases contain a huge subtext as to whether the harasser “has done it before,” and if there are other victims ready to come forward—a situation that would greatly increase the employer’s liability. Generally, employers take these allegations very seriously and have often already disciplined employees as a result of their own internal investigation.

The unspoken message in harassment mediation is that most employers do not want the case to go in front of a jury. Their fear is that a jury will view the alleged victim as helpless and that this will inflame the jury’s inherent leanings toward injustice and award substantial damages. Employers are less likely to fear trial if the case is to proceed in front of an employment arbitrator.

Is mediation the wrong forum to resolve sexual harassment cases?
This mediator has never seen an employment fact pattern inappropriate for mediation. That said, however, mediation may not be appropriate in case of systemic sexual harassment where broad injunctive relief and a change of workplace culture are required for a complete resolution. Mediation may also not be appropriate where the plaintiff is seeking to exploit a co-worker’s minor indiscretion as an opportunity to get rich. Mediation may not be appropriate where the harassed individual is proceeding pro se and may not have the knowledge or personal strength to represent himself or herself. Finally, mediation may not be appropriate where the harassment was so egregious as to make the conduct criminal, as in rape.

Summary
Mediation of sexual harassment cases offers numerous benefits over litigation. These benefits include creativity of terms, confidentiality, privacy, and avoiding the time, delay and cost of traditional litigation. Another key benefit to gaining settlement is using the subject-matter expertise of the mediator.

In this sexually charged world promulgated through culture and media, sexual harassment cases are prevalent. In 2006 alone, the EEOC received over 13,000 sexual harassment charges. Thus, even though the state of the law has expanded broadly over time, the fact and context-specific nature of these disputes will continue to keep mediators busy for many years.

About the author
Richard Fincher is a full-time mediator and arbitrator of workplace disputes and litigation. Formerly a employment litigator, Dick has represented clients in hundreds of harassment claims and served as an advocate in numerous mediations. Dick serves on the employment panels of the American Arbitration Association. He has mediated and arbitrated over 1000 labor and employment disputes, including class actions.

Dick is adjunct faculty at the Scheinman Institute for Conflict Resolution at Cornell University. In 2006, he served as National Vice-President for the Association for Conflict Resolution (ACR). He has received distinction as an Advanced Practitioner in Employment Mediation and an Advanced Practitioner in Labor and Employment Arbitration, from ACR. Dick is a graduate of Cornell University and the DePaul University College of Law.  He can be reached at (609) 953-5322 or rdf@workplaceresolutions.com.