Sexual harassment is one of the most common forms of employment disputes and has grown in numbers and in media attention that it receives over the past few years. The growing awareness into this area, however, unlike other crimes, has not prevented it from remaining among the top source of distress and dispute at the workplace. Between the year 2000 and 2010, over 100,000 sexual harassment lawsuits were filed, roughly 15% by males and the remaining 85% by females. Though the number has gone down slightly from ~15,000 in 2000 to ~12,000 in 2010, the numbers are still high. Some economists attribute the decrease significantly to the effects of the 2007-20011 recession where employees were afraid to file lawsuits against employers for the fear of losing their jobs. During the same period, turnover rates in companies has decreased similarly owing to the same reason. Sexual harassment is very much a serious occupational hazard and should be treated as such.
Over the last couple of decades the role of mediators in resolving sexual harassment lawsuits has continued to gain in prominence. Mediators are often summoned early on in a case with the following objectives outlined for them:
- Understand the case, the people involved and an account of their descriptions of what happened.
- Attempt to achieve a consensus or negotiate a behavioral change if needed.
- Protect the individuals, the company, the employee-employer and the employee-employee relationships in the process.
These objectives are often easier said than done, due to the differences in the account that both parties provide. Take a typical example where a young female intern Tila who’s hired to work for an older male Manager Jack. Tila is enthusiastic and eager to learn from Jack and does whatever it takes to get his attention and approval. Jack, on the other hand, is happy to receive a helping hand. Their relationship grows to where they exchange personal favors, often eat lunches together, and stay close during office parties. from one perspective, nothing harmful – just close office buddies. Sometimes they even hang out after hours with other office buddies after work and Jack often orders drinks for her during these outings. Neckrubs or “kind” words are common during stressful situations. One fine day, during one of the office parties, Tila thinks she catches Jack staring at her inappropriately. A few days later, he pats her on her back in a congratulatory way, perhaps. The following week, Tila talks to HR and files a sexual harassment complaint. Jack says he has no idea what Tila is talking about. Tila thinks it’s obvious he crossed the line. Such occasions are common. Two people view the exact same situation differently.
Though mediators are often experts in handling such situation and have their own set of tools and techniques perfected over a career of negotiating situations, they often include a few standard things that are worth noting.
- Facts vs Stories: Of the accounts that both parties provide, mediators focus on the facts that both agree on. For instance, the days and dates that the exchanges occurred, with specific focus on intent. If the facts align closely, that makes the process easier for everyone involved and is much more likely to result in a simple resolution that doesn’t involve expensive litigation. If extensive touching or real sexual exchange happened as part of the harassment, that certainly increases the amount of the settlement in most cases. This is simply due to the fact that it is often very difficult to establish the intent or the exact nature of the exchange in such exchanges.
- Company Policy: Does the company have a documented anti-harassment policy? Is it communicated to employees? Do employees report awareness of such policies during annual employee surveys? Yes to these questions often lowers employers’ liability in the harassment case.
- Company Involvement: When did the company find out about the issue? How did they handle it? Did they take measures to investigate the issue and document their findings? What was their resolution plan and how did they implement their plan. What do they want to do now and why.
Mediation settlements in situations where companies have delineated clear policies and earnestly spent the time to educate their employees about acceptable conduct and interactions, specific to their employee lifestyles and situations are usually lower. Use these tips to plan your company’s policy against sexual harassment and protect you, your employees and your company from legal costs while ensuring a safe workplace environment. If necessary consider bringing in a neutral business mediator if their is mistrust on either side. A neutral is often most effective because he or she has no hidden biases.