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Sexual Harassment Claims Defense: What the Mediator Looks For

Take a pattern office-setting case: a young receptionist strikes up an office friendship with a middle-aged male executive manager or supervisor. The 20-year-plus age difference offers an opportunity for the young employee to be trained and promoted by the experienced manager who "takes her under his wing." They each describe the relationship like that of father-daughter.

The office relationship fosters workplace growth and confidence for her and a trusted friendship and bonding for him. They run errands for each other and tackle extra work assignments together, blending into a very efficient team. No off-duty romance. No affair. Not even any dates. Just "soft" exchanges of friendship at work:

  • Mutual ergonomic-tension-reducer back or neck rubs,
  • Good-natured banter and jokes, not even off-color, and
  • Occasional touching and hugging at company award ceremonies or parties.

Then, for reasons never really clear, their office relationship escalates into:

  • She wears revealing clothing and his staring at her starts to make her feel "uncomfortable,"
  • An "uneasy" kiss for both of them,
  • Neck rubs where his hands occasionally "slip" down to the sides of her breasts making her more "uncomfortable" even though she never tells him (the supervisor) these things bother her. She secretly confides to a coworker about this escalating conduct.

Then, one day, without warning, the whole situation erupts. She makes sexual- harassment hostile-environment complaints, claims "forced" quitting of her job and is granted unemployment benefits application on the basis of "quit due to sexual harassment."

Next stop: discrimination agencies, court-filed civil complaints, abounding office disruption and finally lawyers, judges, juries and recently mediators.

Employers and alleged harassers frequently raise as their defenses a combination of the following:

  • "We didn't do it."
  • "She welcomed it."
  • "She provoked it."
  • "We didn't know about it." (i.e., the later-alleged hostile workplace environment or the quid pro quo sexual favor demanded in exchange for job benefit).
  • "When we did become aware of it, we promptly investigated and took whatever remedial action was necessary against the harasser."

Case Analysis

How does a mediator sort out all the "he said, she said" stuff? Here is the formula frequently used in these types of dispute resolutions:

1) If the victim's recitation of the harassing coworker or executive's misconduct sounds similar to the harassing coworker or executive's version, the mediator will frequently accept the proposition that the conduct in fact occurred. This non-binding conclusion from an independent mediator can be devastating emotionally to the coworker/ executive and to his spouse attending the mediation.

Mediators frequently accept the victim's version that she felt "uncomfortable" with the executive-in-power's escalation of the conduct and her statements that she was in fear of losing her job as an explanation of why she did not tell the executive or supervisor of her discomfort and to stop.

2) This often leads the mediator to turn her or his case-analysis focus to the company by asking these key questions:

Q. Does the company have a posted, disseminated anti-sex-harassment written policy? Has it been communicated to all workers? Has that communication with all workers been documented?

Q. Does the policy have an ombudsperson designated (outside the supervisory chain) to whom any victim can report their complaints? Does the policy have an anti-retaliatory reporting protection, and is it implemented?

Q. What awareness training has the company given its employees on preventing sexual harassment?

Q. When did the company first have notice of a possible claim or hostile environment workplace situation? What, if any, investigation was done? What, if any, remedial action was taken when and if the harassment was discovered?

Q. Did the company contest the unemployment compensation findings?

A. "No" answers to the above questions frequently produces a mediator's recommendation to settle the case in the mid to upper five-figures area and, in the six figures area, if unwanted touching occurred regularly at work as part of the harassment. Since most of these claims are viewed as intentional, they are normally not being covered by insurance companies who cite the policy exclusion for intentional injuries. Some companies, however, are currently challenging such exclusions.

On the other hand, a "yes" answer to the above questions can support a conclusion that no money should be paid or no more than a nominal sum to allow the parties to go their separate ways amicably.

Are you ready for the mediator's questions?

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