Good Resolution for Bad Advances – Mediating Employment-Related Sexual Harassment and Discrimination Claims | Mediation & Arbitration Miles

As a result of landmark legislation recently passed, claimants and litigants can now expect to see an increase in the mediation of complaints of sexual harassment and gender discrimination in the workplace. Under the Law ending forced arbitration in cases of sexual assault and sexual harassment employers will no longer be able to require arbitration of employment-related sexual harassment or gender discrimination claims.

Historically, employers have used employment contracts that required all employment-related claims, including claims of sexual harassment and gender discrimination, to be resolved through binding, confidential arbitration. Under the Ending Forced Arbitration Act, even if an employee’s contract of employment contains mandatory arbitration provisions, employers will no longer be permitted to mandate arbitration of sexual harassment or sex discrimination claims related to work. (Employers can, however, still rely on mandatory arbitration provisions in employment contracts to mandate other employment-related claims not excluded by this legislation, such as breach of contract, ADA or FLSA claims.) The significant impact of this new law is that employers will no longer be able to use mandatory arbitration to keep sexual harassment and gender discrimination claims private and shielded from further scrutiny. Instead, claims of workplace sexual harassment and gender discrimination will now be able to be filed and prosecuted in public courts and possibly in the court of public opinion.

The most obvious and immediate benefit for claimants of work-related sexual harassment or gender discrimination is that they will now be able to take their claims to the court system if they wish. Therefore, if an employee can survive a motion for summary judgment, then, in the absence of a jury waiver provision in their employment contract, a plaintiff can present their case to a jury with the option of obtaining 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 made public, mediation is probably the best mechanism for claimants and employers to resolve these very sensitive cases. These reasons include:

1) Confidentiality – Mediation is a confidential procedure. This protection is essential to allow the parties to express themselves freely and honestly in order to explore their own respective positions and to assess the risks of not settling the case. Importantly for an applicant, they have the opportunity to tell their emotional and personal story to another person in a neutral, non-judgmental forum. For an employer, they also have the opportunity to tell their side of the story in a confidential setting, but perhaps more importantly, any settlement offer made or resolution reached is confidential.

2) Save time and money – Litigation and arbitration are both time-consuming and costly. Pursuing a lawsuit in the public court system can take years. This has only been exacerbated by the court closures caused by Covid. Although generally simpler than litigation, arbitration can be a very expensive forum since the parties must pay for the arbitrator to hear and decide the dispute.

3) Control of their own destiny – Mediation allows each of the parties, plaintiff and employer, to control their destiny. In a court case or arbitration, a judge, jury or arbitrator decides the outcome. The parties have no control over the verdict rendered by the judge, jury or arbitrator. In mediation, any resolution is voluntary and accepted by the parties.

4) Flexibility – Mediation allows parties to work out resolutions that would otherwise not be available in traditional courts or arbitrations. Where the outcome of most disputes or arbitrations is limited to a sum of money, mediation allows the parties to potentially craft a resolution with non-monetary considerations, such as an apology, training initiatives, reinstatement or job recommendation. These original measures can make the difference in resolving a case and allow the parties to overcome an emotional, disruptive and costly dispute.

Now that claims of sexual harassment and work-related gender discrimination can no longer be submitted to arbitration, disputing parties have the freedom and opportunity to choose the 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 choose to use mediation, mediation can be an excellent self-determination tool that allows parties to decide how and when they resolve these very difficult and emotional claims.

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