SEXUAL HARASSMENT AND MEDIATION

Sexual harassment in the workplace or elsewhere is by no means a new occurrence. The #MeToo movement and the recent Harvey Weinstein trial have brought it long overdue public attention.

Before #MeToo, there was some use of mediation in sexual harassment cases. Typically, those who did seek redress employed attorneys who issued a demand letter to the employer after which the employer conducted an investigation. Mediation in those cases typically focused on liability and the amount of an award. Confidentiality was required and the complainant’s demand for discipline or termination of the harasser was rare.

The #MeToo movement has brought several important changes. More women have been encouraged to come forward with complaints. Employers’ response overall has changed. Previously, employers relied on their own HR departments or counsel to investigate the complaint, but today it is more likely that employers use external third-party neutrals to perform an investigation.

Demands made by victims has changed as well. Employers report that victims are more likely to make greater demands, including discipline and termination of the harasser. Additionally, women no longer fear going public with allegations making non-disclosure agreements less relevant. Employers may have become more concerned about confidentiality to protect their image while victims are more willing to make their cases public. These changes have revised the content of those complaints that do go to mediation.

A complicating factor is a 2017 federal tax law that employers cannot deduct any money spent on settling or litigating sexual harassment claims. Thus sexual harassment is treated differently from gender, race, age, national origin and disability claims. The implications of this change is yet to be clear.

Mediation for sexual harassment presents many unique challenges. In the biggest ever sexual harassment case to be mediated, some 80 women entered into mediation talks with Harvey Weinstein’s attorneys, demanding $100 million for a victim’s fund. Weinstein’s insurers are not willing to pay anything near that amount. While the case has certainly brought increased public awareness, the victims face enormous obstacles for any compensation for suffering and damages to their careers.

The function of mediation in sexual harassment cases has definitely changed as has public awareness. The fundamental issue, though, is whether or not the workplace itself has actually changed.