*Natalie Del Cueto
Workplace sexual harassment is widespread and it’s extremely important to analyze which form of alternative dispute resolution is the best for victims of this harassment. Studies estimate that about 25% to 80% of women will experience workplace harassment in their lives.[1] Further, in 2018, there was a 14% increase in the amount of sexual harassment claims that were filed with the U.S. Equal Employment Opportunity Commission (“EEOC”).[2] Moreover, the EEOC reports that approximately 87% to 94% of individuals who are harassed at work do not file a complaint.[3]
The EEOC defines sexual harassment as “unwanted sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”[4] Further, the EEOC states that harassment becomes “illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision.”[5] Mediation is “defined as ‘the use of a third-party neutral to intervene between two parties who are in conflict.’”[6] In almost 85% of cases, mediation has resolved the conflict.[7] Mediation usually works best with sensitive emotional issues, such as sexual harassment cases.
The EEOC has long advocated to mediate employment sexual harassment cases.[8] In 1993, the EEOC began using mediation as a way to deal with the extraordinary amount of sexual harassment claims brought.[9] Arbitration and litigation are expensive and time-consuming and do not provide a solution to “such a socially detrimental and pervasive problem.”[10] Due to the many issues that arise from arbitration and litigation, mediation seems to be the best method for victims of sexual harassment in the workplace. For the victim, litigation can be expensive and embarrassing; for the employer, litigation can cause reputational harm. It may be quite likely that neither party wants to be involved in arbitration nor litigation. Even with its disadvantages, mediation seems to be the best form.
One of the best advantages of using meditation for employment sexual harassment cases is that it makes a less formal forum. For the victim employee, she/he can lay out the issues in her/his claims by confronting her/his employer and not worry about having to be put on the stand, such as she/he would need to in litigation.[11] For the alleged harasser, he/she would have the opportunity to explain their conduct.[12] For the employer, there is the ability to speak to both parties and work with both of them to make sure that neither party feels turned on.[13] However, one of the main disadvantages in mediation comes if the parties cannot come to a resolution for which both sides are satisfied. At that moment, mediation may become extremely costly due to the need to then transition to litigating the issue.[14]
Overall, after years of advocating for mediation, it seems to be the best forum for resolving matters of sexual harassment in the employment context. Employees have the ability to say all sides of their story without worry on how the public would perceive them. Furthermore, employers have the ability to resolve said internal conflicts without bringing attention to the issue that may cause the company reputational harm.
* J.D. Candidate, May 2020, Florida International University College of Law
[1] Elyse Shaw, Ariane Hegewisch, & Cynthia Hess, Sexual Harassment and Assault at Work: Understanding the Costs, Institute for Women’s Policy Research (Oct. 15, 2018), https://iwpr.org/publications/sexual-harassment-work-cost/.
[2] Khadija Murad, Sexual Harassment in the Workplace, NCSL (Feb. 17, 2020), https://www.ncsl.org/research/labor-and-employment/sexual-harassment-in-the-workplace.aspx.
[3] Katie Yahnke, The 2020 Guide to Workplace Sexual Harassment [INFOGRAPHIC], i-Sight (Jan. 30, 2019), https://i-sight.com/resources/guide-to-workplace-sexual-harassment-infographic/.
[4] Sexual Harassment, EEOC, https://www.eeoc.gov/laws/types/sexual_harassment.cfm (last visited Mar. 18, 2020).
[5] Id.
[6] Carrie A. Bond, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 Fordham L. Rev. 2489, 2490 (1997).
[7] Id. at 2511-12.
[8] EEO Mediation Guide, Dep’t Commerce Alt. Dispute Resolution (May 2002), https://www.commerce.gov/sites/default/files/ocr/mediationguide.pdf.
[9] Jonathan R. Harkavy, Privatizing Workplace Justice: The Advent of Mediation in Resolving Sexual Harassment Disputes, 34 Wake Forest L. Rev. 135, 155 (1999).
[10] Bond, supra note 6, at 2489–90.
[11]. Harkavy, supra note 9, at 135, 156.
[12] Id. at 135, 157.
[13] Id.
[14] Patrick J. Lamparello & Noa M. Baddish, Mediating Employment Disputes, Lexis Nexis (June 19, 2019), https://www.lexisnexis.com/lexis-practice-advisor/the-journal/b/lpa/posts/mediating-employment-disputes.