Right Resolution for Wrong Advances – Mediating Employment-Related Sexual Harassment & Discrimination Claims
By Jim Shea
As a result of recently passed landmark legislation, claimants and litigants can now expect to see a surge in the mediation of workplace sexual harassment and sexual discrimination claims. Under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act employers will now no longer be able to mandate the arbitration of employment-related sexual harassment or sexual discrimination claims.
Historically, employers have utilized employment agreements that required all employment-related claims, including claims of sexual harassment and sexual discrimination, to be resolved via mandatory and confidential arbitration proceedings. Under the Ending Forced Arbitration Act, even if an employee’s employment contract contains mandatory arbitration provisions, employers will no longer be permitted to mandate the arbitration of work-related sexual harassment or sexual discrimination claims. (Employers however may still rely on mandatory arbitration provisions in employment contracts in order to mandate other employment-related claims that are not excluded by this legislation, such as breach of contract, ADA or FLSA claims.) The significant impact of this new law is that no longer will employers be able to utilize mandatory arbitration to keep sexual harassment and sexual discrimination claims private and away from additional scrutiny. Instead, work-related sexual harassment and sexual discrimination claims will now be permitted to be filed and prosecuted in public court systems and perhaps the court of public opinion.
The most apparent, immediate benefit to work-related sexual harassment or sexual discrimination claimants is that they will now be able, should they elect, to pursue their claims in the court system. Therefore, if an employee can survive a motion for summary judgment, then, barring a jury waiver provision in their employment agreement, a claimant can get its case before a jury with the potential to obtain a significantly higher verdict and recovery than private arbitration has historically provided in these highly personal and emotional claims.
Now that these claims will be in the public forum, mediation is likely the best mechanism for both claimants and employers to address these very delicate cases. These reasons include:
1) Confidentiality – Mediation is a confidential proceeding. This protection is critical to allow the parties to speak freely and honestly in order to explore their own respective positions and evaluate the risks of not getting the case settled. Importantly for a claimant, it has the opportunity to tell their emotional and personal story to another person in a neutral, non-judgmental forum. For an employer, they too have the opportunity to likewise tell their side of the story in a confidential setting, but perhaps more importantly any settlement offers made or a resolution reached are confidential.
2) Time and Money Savings – Litigation and Arbitration are both time-consuming and expensive. Prosecuting a lawsuit in the public court system can take years. This has only been exacerbated by court closings caused by Covid. Although generally more streamlined than litigation, arbitration, can be a very expensive forum since the parties have to pay for the arbitrator to hear and decide the dispute.
3) Control of Their Own Destiny – Mediation allows each of the parties, both claimant and employer to control their own destiny. In a court case or arbitration, a judge, jury, or arbitrator decides the outcome. The parties have no control over what verdict the judge, jury, or arbitrator return. In mediation, any resolution is voluntary and agreed to by the parties.
4) Flexibility – Mediation enables the parties to develop resolutions that may not otherwise be available in traditional court or arbitration settings. Where the result of most litigation or arbitration is restricted to a monetary sum, mediation enables the parties to potentially craft a resolution with non-monetary considerations, such as an apology, training initiatives, reinstatement, or job recommendation. These outside-the-box measures can make the difference in getting a case resolved and allowing the parties to move past an emotional, disruptive and costly dispute.
Now that work-related sexual harassment and sexual discrimination claims can no longer be mandated to arbitration, parties to the dispute have the freedom and opportunity to select which method they believe will best resolve their dispute. Given the benefits of mediation, whether a court orders mediation (as is the case in Florida), or the parties voluntarily elect to mediate, mediation can be a great tool of self-determination that allows parties to decide how and when they resolve these very difficult and emotional claims.
ABOUT JIM SHEA
Jim Shea has over thirty years of litigation and dispute resolution experience, including the last nine years in-house, where his roles have included Chief Operating Officer, and subsequently Chief Legal Officer and Chief Risk Officer for a privately held Inc. 5000 Fastest Growing Companies from 2013-2017 and its affiliated entities. In these roles, Jim was responsible for, or oversaw, all legal and compliance functions, insurance/risk, and human resources for the sales, call center, inventory, installation, and fulfillment services in the telecommunications, fiber, construction, and consumer electronics/appliances delivery industries.