During this polarizing time, one of the most high-profile situations that draws media attention to a business is a sexual harassment claim.  While some such claims are based upon an insidious culture against a particular sex, many are often the result of a misunderstanding or bad response to an initial complaint.  Employers may wish to consider the use of mediation as an effective way of resolving such disputes and may draft a model mediation program to accomplish these goals.  Some considerations may include:

Objectivity

When litigation ensues, there is often a perceived image of the “bad guy.” However, mediation allows a third party who has no connection to the case to help the parties work through the dispute.  Key members of the staff may be present and may be able to be objective rather than immediately assuming the accused is horrible. 

Confidentiality

The mediator should discuss the confidential nature of these proceedings.  Victims may prefer the confidential aspect of this process so that they will not be traumatized by having to testify in court or go through a formal grievance process.  Anything that is discussed in mediation cannot later be used against one of the parties.

Ability to Contemplate

Mediation focuses on the parties working together to achieve mutual interests.  This often gives the parties a chance to really think about their behavior and how others may have perceived it or been affected by it.  This time to reflect may help establish the roots for ideas to resolve the dispute as well as avoid similar problems in the future.  For example, the parties may agree to create a new policy, form a coalition or provide more education in the workplace to help head off similar problems in the future.

If an employer allows an employee to be sexually harassed, the employer can face substantial economic liability. However, proving a claim of this nature is often difficult. If an employee pursues a case in court, the employer may raise many defenses.

One of the most common ways for an employer to defend a sexual harassment claim is to show that the plaintiff has not met his or her burden. Simple teasing and isolated events are often not actionable. In order for an employee to recover with a lawsuit, he or she must show by a preponderance of the evidence that the harassment was so frequent or severe that it creates a hostile work environment or that it resulted in an adverse employment action. Showing that the harassment meets this level is often difficult because the employee must generally demonstrate that the harassment altered his or her terms and conditions of employment. An employee may not have proof of the harassing contact and the case may become a he-said/she-said.

Another common defense is that the employee did not take advantage of the sexual harassment policy by giving management the opportunity to adequately remedy the problem. An accused harassing party may even claim that the conduct was welcome and not offensive.

Many employers offer mediation to help resolve issues involving sexual harassment claims. This approach allows a mediator to analyze the claim and point out any weaknesses. This conversation is often completed in private away from the other party. If both parties realize the weaknesses of their side and how an adverse decision in court can affect them, the parties may be more likely to reach a settlement. This allows the parties to resolve the claim without having to litigate the matter in court and hoping that the jury finds the testimony and evidence to weigh more heavily on their side.