Shattering the myth: Mediating sexual harassment disputes in the workplace

Fordham Law Review

Volumn 65, Issue 6, 1997, Pages 2489-2532

  Bond, Carrie A ^a  

^a NONE

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EID: 0031536090     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (329)

1. John F. Kennedy, Commencement Speech at Yale, in The Great Thoughts 226, 226 (George Seldes ed., 1985) (1962).
2. Susan R. Meredith, Using Fact Finders to Probe Workplace Claims of Sexual Harassment, 47 Arb. J. 61, 61 (1992). These are the more conservative figures; one of the earliest mainstream sexual harassment surveys, a Redbook poll cited by Meredith, shows that 90% of 9,000 women surveyed in 1976 reported being harassed at work. Claire Safran, What Men Do to Women on the Job: A Shocking Look at Sexual Harassment, Redbook, Nov. 1976, at 149, 217.
3. Susan R. Meredith, Using Fact Finders to Probe Workplace Claims of Sexual Harassment, 47 Arb. J. 61, 61 (1992). These are the more conservative figures; one of the earliest mainstream sexual harassment surveys, a Redbook poll cited by Meredith, shows that 90% of 9,000 women surveyed in 1976 reported being harassed at work. Claire Safran, What Men Do to Women on the Job: A Shocking Look at Sexual Harassment, Redbook, Nov. 1976, at 149, 217.
4. Mary P. Rowe, People Who Feel Harassed Need a Complaint System with Both Formal and Informal Options, 6 Negotiation J. 161, 162 (1990). Because in the majority of cases the victim of sexual harassment is female, this Note will refer to the victim as "she." This is not to discount the significant number of male victims of harassment who seek legal relief. See, e.g., Yeary v. Goodwill Indus.-Knoxville, Inc., No. 96-5145, 1997 WL 73312, at *7 (6th Cir. Feb. 24, 1997) (upholding male complainant's same-sex sexual harassment claim); Schrader v. E.G. & G., Inc., No. CIV.A.95-B-870, 1997 WL 61018, at *9 (D. Colo. Feb. 7, 1997) (dismissing male plaintiff's claim for sexual harassment by female supervisor). This Note also uses the terms "victim" and "complainant" interchangeably although a legal complaint has not necessarily been filed.
5. Reorganization Plan 1 of 1978, 5 U.S.C. app. § 3 (1994) (transferring authority for agency determinations of sexual harassment from the Civil Service Commission to the Equal Employment Opportunity Commission). The EEOC ("EEOC") instructs potential victims that "[c]harges of sexual harassment may be filed at any field office of the U.S. Equal Employment Opportunity Commission." Facts About Sexual Harassment, in The United States Equal Employment Opportunity Commission Technical Assistance Program, Sex Discrimination B-4, B-4 (1995) [hereinafter Sex Discrimination]. The job of the EEOC is to receive complaints, investigate them, attempt conciliation, and litigate claims on the behalf of the victims. Edward J. Costello, Jr., The Mediation Alternative in Sex Harassment Cases, 47 Arb. J. 16, 18 (1992). In practice, the EEOC meets few of these goals, and "[t]he only thing all parties can be relatively sure of at the EEOC level is that the complainant will have to wait six months before doing anything else about the complaint." Id. The EEOC does pass guidelines, however, on how the federal regulations defining sexual harassment should be interpreted. See infra note 46 and accompanying text. These guidelines are frequently relied on by the courts in their determinations of unlawful and harassing conduct. See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986).
6. Reorganization Plan 1 of 1978, 5 U.S.C. app. § 3 (1994) (transferring authority for agency determinations of sexual harassment from the Civil Service Commission to the Equal Employment Opportunity Commission). The EEOC ("EEOC") instructs potential victims that "[c]harges of sexual harassment may be filed at any field office of the U.S. Equal Employment Opportunity Commission." Facts About Sexual Harassment, in The United States Equal Employment Opportunity Commission Technical Assistance Program, Sex Discrimination B-4, B-4 (1995) [hereinafter Sex Discrimination]. The job of the EEOC is to receive complaints, investigate them, attempt conciliation, and litigate claims on the behalf of the victims. Edward J. Costello, Jr., The Mediation Alternative in Sex Harassment Cases, 47 Arb. J. 16, 18 (1992). In practice, the EEOC meets few of these goals, and "[t]he only thing all parties can be relatively sure of at the EEOC level is that the complainant will have to wait six months before doing anything else about the complaint." Id. The EEOC does pass guidelines, however, on how the federal regulations defining sexual harassment should be interpreted. See infra note 46 and accompanying text. These guidelines are frequently relied on by the courts in their determinations of unlawful and harassing conduct. See, e.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986).
7. Nadya Aswad, ADR: Many Attorneys Welcome EEOC Decision to Refer Charges to Federal Mediators, 200 Daily Lab. Rep. (BNA) A-8 (Oct. 16, 1996). In fact, as a result of the backlog, the EEOC has agreed, in conjunction with the Federal Mediation and Conciliation Service, to offer mediation for discrimination claims. Id.
8. Stephanie Riger, Gender Dilemmas in Sexual Harassment Policies and Procedures, in Sexual Harassment 197, 198 (Edmund Wall ed., 1992); Hearings on H.R. 1, The Civil Rights Act of 1991: Hearings Before the House Comm. on Education and Labor, 102d Congress, 1st Sess. 168, 172 (1991) [hereinafter The Civil Rights Act of 1991: Hearings] (statement of Dr. Freada Klein) (indicating that more than 90% of sexual harassment victims are unwilling to report the incidents).
9. Stephanie Riger, Gender Dilemmas in Sexual Harassment Policies and Procedures, in Sexual Harassment 197, 198 (Edmund Wall ed., 1992); Hearings on H.R. 1, The Civil Rights Act of 1991: Hearings Before the House Comm. on Education and Labor, 102d Congress, 1st Sess. 168, 172 (1991) [hereinafter The Civil Rights Act of 1991: Hearings] (statement of Dr. Freada Klein) (indicating that more than 90% of sexual harassment victims are unwilling to report the incidents).
10. See, e.g., Jill Abramson & David Shribman, High Court Drama: Sex Harassment Furor Jeopardizes Thomas, Embarrasses Politicians, Wall St. J., Oct. 9, 1991, at A1 (discussing how Anita Hill's allegations of sexual harassment impacted Justice Thomas' Supreme Court nomination); see also Anna D. Smith, The Most Riveting Television: The Hill-Thomas Hearings and Popular Culture, in Race, Gender, and Power in America 248, 248 (Anita F. Hill & Emma C. Jordan eds., 1995) ("The Hill-Thomas hearings were one of the most watched public events in the history of television.").
11. See, e.g., Jill Abramson & David Shribman, High Court Drama: Sex Harassment Furor Jeopardizes Thomas, Embarrasses Politicians, Wall St. J., Oct. 9, 1991, at A1 (discussing how Anita Hill's allegations of sexual harassment impacted Justice Thomas' Supreme Court nomination); see also Anna D. Smith, The Most Riveting Television: The Hill-Thomas Hearings and Popular Culture, in Race, Gender, and Power in America 248, 248 (Anita F. Hill & Emma C. Jordan eds., 1995) ("The Hill-Thomas hearings were one of the most watched public events in the history of television.").
12. See, e.g., Sex-Harassment Award Reduced, N.Y. Times, Nov. 29, 1994, at A22 (discussing a California state judge's reduction of compensatory and punitive damages awarded to plaintiff Rena Weeks).
13. Cynthia F. Cohen, Legal Dilemmas in Sexual Harassment Cases, 38 Lab. L.J. 681, 681 (1987). Sexual harassment is itself "a term of art - a statutory concept that derives from an interpretation of Title VII's prohibition against sex discrimination." Tim Bornstein, Arbitration of Sexual Harassment, in Arbitrating Sexual Harassment Cases 1-31, 1-32 (Vern E. Hauck ed., 1995). Sexual harassment is difficult to define because it encompasses such a diverse range of behavior, from off-color jokes to workplace rape. The Civil Rights Act of 1991: Hearings, supra note 6, at 185 (statement of Dr. Freada Klein). Further, sexual harassment is both "subjective" and "context-dependent." Id.
14. Cynthia F. Cohen, Legal Dilemmas in Sexual Harassment Cases, 38 Lab. L.J. 681, 681 (1987). Sexual harassment is itself "a term of art - a statutory concept that derives from an interpretation of Title VII's prohibition against sex discrimination." Tim Bornstein, Arbitration of Sexual Harassment, in Arbitrating Sexual Harassment Cases 1-31, 1-32 (Vern E. Hauck ed., 1995). Sexual harassment is difficult to define because it encompasses such a diverse range of behavior, from off-color jokes to workplace rape. The Civil Rights Act of 1991: Hearings, supra note 6, at 185 (statement of Dr. Freada Klein). Further, sexual harassment is both "subjective" and "context-dependent." Id.
15. Cohen, supra note 9, at 681.
16. 42 U.S.C. § 2000e-2(a) (1994) provides in pertinent part: It shall be an unlawful employment practice for an employer - (1) to fail to refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . . Id.
17. Title VII, however, is not the only course of action for an injured sexual harassment plaintiff. See infra note 118 and accompanying text.
18. Sexual harassment was first held to be actionable under Title VII in Williams v. Saxbe, 413 F. Supp. 654 (D.D.C. 1976), rev'd, 587 F.2d 1240 (D.C. Cir. 1978) (reversing summary judgment for the employee for a trial de novo). The Supreme Court subsequently agreed with the Williams court, finding a cause of action for sexual harassment under Title VII in Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986). Catherine MacKinnon, well known for her book entitled Sexual Harassment of Working Women: A Case of Sex Discrimination (1979), was instrumental in Congress's recognition of sexual harassment as a Title VII claim. See Deborah N. McFarland, Note, Beyond Sex Discrimination: A Proposal for Federal Sexual Harassment Legislation, 65 Fordham L. Rev. 493, 510 (1996) (discussing MacKinnon's role in shaping sexual harassment law).
19. 29 C.F.R. § 1604.11(a) (1995). Harassment on the basis of sex is a violation of Section 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Id. (footnote omitted).
20. See, e.g, Mentor, 477 U.S. at 62 (stating that a quid pro quo claim exists where the harassment "involves the conditioning of concrete employment benefits on sexual favors"); see also Karibian v. Columbia Univ., 14 F.3d 773, 776 (2d Cir.) (recognizing a claim for quid pro quo sexual harassment where the plaintiff claimed that her supervisor "coerced her into a violent sexual relationship by telling her that she 'owed him' for all he was doing for her" and that "the conditions of her employment - including her raises, hours, autonomy and flexibility - varied from time to time, depending on her responsiveness to [her supervisor]"), cert. denied, 512 U.S. 1213 (1994).
21. The first federal court to uphold a hostile environment sexual harassment claim was the Court of Appeals for the D.C. Circuit in 1981. Bundy v. Jackson, 641 F.2d 934 (D.C. Cir. 1981). The Supreme Court later recognized this claim as actionable under Title VII in Meritor, 477 U.S. at 57.
22. Mentor, 477 U.S. at 62; Karibian, 14 F.3d at 778.
23. Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 452 (N.J. 1993).
24. Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178, 186 (6th Cir. 1992), cert. denied, 506 U.S. 1041 (1992); see also 1 Alba Conte, Sexual Harassment in the Workplace: Law and Practice § 6.43, at 279-84 (2d ed. 1994).
25. Compare supra text accompanying note 19 (listing proof burdens on the quid pro quo plaintiff) with infra text accompanying note 21 (listing proof burdens on the hostile environment plaintiff).
26. Burns v. McGregor Elec. Indus., Inc., 989 F.2d 959, 964 (8th Cir. 1993); see also Meritor, 477 U.S. at 57 (finding claim for hostile environment sexual harassment); Conte, supra note 19, § 6.44, at 284-304.
27. EEOC Notice, March 3, 1990 Policy Guidance on Current Issues of Sexual Harassment, in Sex Discrimination, supra note 4, at D-1, D-3; see, e.g., Carrero v. New York City Hous. Auth., 890 F.2d 569 (2d Cir. 1989) (holding that the plaintiff had established both quid pro quo and hostile environment sexual harassment).
28. Mori Irvine, Note, Mediation: Is It Appropriate for Sexual Harassment Grievances?, 9 Ohio St. J. on Disp. Resol. 27, 40 (1993).
29. Compare supra text accompanying note 19 (requiring proof that quid pro quo plaintiff was in a "protected class") with supra text accompanying note 21 (requiring proof that hostile environment plaintiff was in a "protected group").
30. See, e.g., Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991) (explicating a three-prong hostile environment sexual harassment claim and not requiring proof that the victim was a member of a protected class); Andrews v. Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (providing the elements of a hostile environment claim, and not requiring proof that victim was a member of a protected class).
31. Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) (requiring "a simple stipulation that the employee is a man or woman"); Radtke v. Everett, 501 N.W.2d 155, 162 (Mich. 1993) (stating that the plaintiff must establish that she "belonged to a protected group").
32. Compare supra note 19 (requiring "unwelcome sexual harassment") with supra note 21 (same).
33. See, e.g., Radtke, 501 N.W.2d at 164 (applying a "reasonable person" standard); Ellison, 924 F.2d at 879 (applying a "reasonable woman" standard).
34. Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 458 (N.J. 1993). While these courts used an objective standard to determine whether the conduct was unwelcome, they did not ignore the victims' subjective experiences. Courts utilize this information in evaluating the damages in the harassment claim. "[T]he subjective reaction of the plaintiff and her individual injuries [is] relevant to compensatory damages." Id.
35. See, e.g., Radtke, 501 N.W.2d at 167 (applying a "reasonable person" standard).
36. See, e.g., Ellison, 924 F.2d at 879 ("[W]e believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women."). Of course, if the plaintiff were male, the standard would be that of a reasonable man; the vantage point is that of "a reasonable victim of the same sex as the plaintiff." Id. at 880; see also Lehmann, 626 A.2d at 458 ("If the plaintiff is male, the perspective used shall be that of a reasonable man.").
37. Lehmann, 626 A.2d at 459; see also Rosemarie Skaine, Power and Gender: Issues in Sexual Dominance and Harassment 178 (1996) (citing numerous studies finding a difference between how men and women perceive sexual harassment). "The variable that most consistently predicts variation in people's definition of sexual harassment is the sex of the rater [evaluating the behavior]. Men label fewer behaviors at work as sexual harassment." Id. While men and women can agree that certain egregious conduct should be considered harassment, men view more subtle sexual behavior directed toward them as flattering, while women view these same acts as insulting. Id.
38. See Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 Vand. L. Rev. 1183, 1189 (1989) ("Men, who enjoy a hegemonic power over social meanings by virtue of their dominant status in society, label as 'different' all qualities, values, and practices characteristic of or associated with women.").
39. Ellison, 924 F.2d at 878; Lehmann, 626 A.2d at 459.
40. Radtke v. Everett, 501 N.W.2d 155, 167 (Mich. 1993). The belief that women are entitled to a separate legal standard merely reinforces, and perhaps originates from, the stereotypic notion that first justified subordinating women in the workplace. Courts utilizing the reasonable woman standard pour into the standard stereotypic assumptions of women which infer women are sensitive, fragile, and in need of a more protective standard. Such paternalism degrades women . . . . Id.
41. Martha Chamallas, Writing About Sexual Harassment: A Guide to the Literature, 4 UCLA Women's L.J. 37, 50 (1993); see also Naomi R. Cahn, The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice, 77 Cornell L. Rev. 1398 (1992) (critiquing the reasonable woman standard). Any reasonableness standard is essentialist in the sense that the actions of a hypothetical person are dubbed normative in the eyes of the law. To the extent that a reasonableness standard insulates employers from oversensitive employees, it is desirable. See supra note 29 and accompanying text. Beyond this point, however, courts should refrain from further fracturing the standard. One scholar argues that a black woman, for example, may have a different view of harassment than a white woman as a result of her race. Abrams, supra note 33, at 1214. Socioeconomic position may also affect a woman's perception of sexual harassment. Id. Applying a reasonable woman standard is a difficult task because it is defined in relation to a reasonable man standard, which is itself amorphous. It is not desirable or efficient to implement standards that are more plaintiff-specific. Otherwise innocuous behavior, for example, might be harassment if targeted at a Native American woman of limited economic means, but not at a middle-class, white female employee. Assessing one's workplace conduct is challenging enough without muddying the waters by splintering the reasonable man or, if necessary, reasonable woman standard even further.
42. Martha Chamallas, Writing About Sexual Harassment: A Guide to the Literature, 4 UCLA Women's L.J. 37, 50 (1993); see also Naomi R. Cahn, The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice, 77 Cornell L. Rev. 1398 (1992) (critiquing the reasonable woman standard). Any reasonableness standard is essentialist in the sense that the actions of a hypothetical person are dubbed normative in the eyes of the law. To the extent that a reasonableness standard insulates employers from oversensitive employees, it is desirable. See supra note 29 and accompanying text. Beyond this point, however, courts should refrain from further fracturing the standard. One scholar argues that a black woman, for example, may have a different view of harassment than a white woman as a result of her race. Abrams, supra note 33, at 1214. Socioeconomic position may also affect a woman's perception of sexual harassment. Id. Applying a reasonable woman standard is a difficult task because it is defined in relation to a reasonable man standard, which is itself amorphous. It is not desirable or efficient to implement standards that are more plaintiff-specific. Otherwise innocuous behavior, for example, might be harassment if targeted at a Native American woman of limited economic means, but not at a middle-class, white female employee. Assessing one's workplace conduct is challenging enough without muddying the waters by splintering the reasonable man or, if necessary, reasonable woman standard even further.
43. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68 (1986).
44. Id. To refute a plaintiff's claim that the behavior was unwelcome, an employer might allege that the victim participated in the incident voluntarily. Because a plaintiff may consent put of fear, however, this argument cannot constitute a complete defense to allegations of sexual harassment. The focus is on whether the complainant indicated the conduct was unwelcome, not whether she participated in it. Id.
45. Compare supra text accompanying note 19 (requiring that quid pro quo sexual harassment be based on gender) with supra text accompanying note 21 (requiring that hostile environment sexual harassment be based on gender). Interestingly, the woman filing suit need not be the target of all, or even any, of the offensive conduct if it created a hostile working environment for her. Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 457 (N.J. 1993).
46. Id. at 454.
47. Id.; Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir. 1988) ("Intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances.").
48. See Lehmann, 501 N.W.2d at 454.
49. Likewise, a male victim of harassment must establish that he was harassed because he was a man.
50. See, e.g., Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986) ("[I]nstances of complained of conduct that prove equally offensive to male and female workers would not support a Title VII sexual harassment charge . . . ."), cert. denied, 481 U.S. 1041 (1987); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982); see also Anja A. Chan, Women and Sexual Harassment: A Practical Guide to the Legal Protections of Title VII and the Hostile Environment Claim 9-10 (1994); Charles R. Calleros, The Meaning of "Sex": Homosexual and Bisexual Harassment Under Title VII, 20 Vt. L. Rev. 55, 79 (1995) ("[T]ruly bisexual harassment is not disparate treatment prohibited by Title VII."). The question of whether bisexual harassment should fall under Title VII is beyond the scope of this Note. For an argument suggesting that both bisexual and homosexual harassment should be actionable, see McFarland, supra note 13, at 541-42.
51. See, e.g., Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986) ("[I]nstances of complained of conduct that prove equally offensive to male and female workers would not support a Title VII sexual harassment charge . . . ."), cert. denied, 481 U.S. 1041 (1987); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982); see also Anja A. Chan, Women and Sexual Harassment: A Practical Guide to the Legal Protections of Title VII and the Hostile Environment Claim 9-10 (1994); Charles R. Calleros, The Meaning of "Sex": Homosexual and Bisexual Harassment Under Title VII, 20 Vt. L. Rev. 55, 79 (1995) ("[T]ruly bisexual harassment is not disparate treatment prohibited by Title VII."). The question of whether bisexual harassment should fall under Title VII is beyond the scope of this Note. For an argument suggesting that both bisexual and homosexual harassment should be actionable, see McFarland, supra note 13, at 541-42.
52. Rabidue, 805 F.2d at 620.
53. Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604.11(a)-(e) (1997) [hereinafter EEOC Guidelines]. For an explication of the role of the EEOC and its Guidelines in sexual harassment determinations, see supra note 4.
54. EEOC Guidelines, supra note 46, § 1604.11(a)-(e).
55. Id. § 1604.11(c).
56. Andrew J. Ruzicho & Louis A. Jacobs, Employment Practices Manual: A Guide to Minimizing Constitutional, Statutory and Common-Law Liability § 6:25 at 54 (1994).
57. EEOC Guidelines, supra note 46, § 1604.11(d)-(e).
58. Id. § 1604.11(e).
59. Id. § 1604.11(d)-(e).
60. See supra part I.B.
61. See, e.g., Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994) ("[T]o establish a prima facie case of quid pro quo harassment, a plaintiff must present evidence that she was subject to unwelcome sexual conduct, and that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of her employment." (emphasis omitted)), cert. denied, 512 U.S. 1213 (1994).
62. Id. The plaintiff from whom the supervisor requests sexual favors, however, is not the only one who may sue. The EEOC Guidelines indicate that other employees who were qualified for, but denied, a benefit because it was conferred on another employee who was acquiescing to the harasser's requests may also sue the employer. EEOC Guidelines, supra note 46, § 1604.11(g); see, e.g., King v. Palmer, 778 F.2d 878, 882 (D.C. Cir. 1985) (finding a basis for a discrimination claim where an employee was passed over for promotion because of her supervisor's relationship with a fellow employee). This employee has a cause of action under Title VII because the harassment directly affects the passed-over employee's employment as well.
63. See Carrero v. New York City Hous. Auth., 890 F.2d 569, 579 (2d Cir. 1989).
64. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986).
65. Id.
66. Id. at 64 ("[T]he language of Title VII is not limited to 'economic' or 'tangible' discrimination.").
67. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993).
68. EEOC Guidelines, supra note 46, § 1604.11(b).
69. Harris, 510 U.S. at 23. In some jurisdictions, a woman may show that other women have been harassed to demonstrate the severity of her working conditions. See, e.g., Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 457 (N.J. 1993). Courts allowing such evidence indicate that it is directly relevant in establishing both the nature of the workplace and its effects on a particular plaintiff. Id.; see also Vinson v. Taylor, 753 F.2d 141, 146. (D.C. Cir. 1985). This is especially true because a woman could sue even if she was not the direct target of the conduct. See, e.g., EEOC Guidelines, supra note 46, § 1604.11(g) (indicating that when employment benefits are inappropriately granted to an employee because she accepted sexual favors, employees qualified for, but denied, those benefits also suffer sexual harassment); see also supra note 39 (indicating that a plaintiff may have a Title VII claim even if she is not the direct target of the harassment). Courts forbidding such testimony hold that, while it may be relevant in a class action, it is not revealing in an individual lawsuit on the question of how harassment has affected a particular plaintiff. Jones v. Flagship Int'l, 793 F.2d 714, 721 n.7 (5th Cir. 1986), cert. denied, 479 U.S. 1065 (1987).
70. Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986).
71. Radtke v. Everett, 501 N.W.2d 155, 158-59 (Mich. 1993) (finding a prima facie claim for sexual harassment based on a hostile environment where a doctor-supervisor harassed a veterinary technician during a weekend shift while working alone with her).
72. Ross v. Double Diamond, Inc., 672 F. Supp. 261, 264-65 (N.D. Tex. 1987) (detailing pattern of harassment, including that plaintiff's boss asked within her first, hour on the job whether she "fooled around," called her extension asking her to pant heavily, and that salesmen in her office placed a camera under plaintiff Ross and took a photograph up her dress).
73. Radtke, 501 N.W.2d at 161.
74. Id. at 161 & n.15.
75. Id.
76. Id.
77. The Civil Rights Act of 1991: Hearings, supra note 6, at 207-14.
78. See id.
79. Id. at 214.
80. Id.
81. Radtke v. Everett, 501 N.W.2d 155, 161 & n.15 (Mich. 1993).
82. Riger, supra note 6, at 198. When the victim is a member of a racial minority, several courts allow "evidence of racial hostility [to] be aggregated with evidence of sexual hostility in determining the extent to which the environment is hostile to the plaintiff." Stingley v. Arizona, 796 F. Supp. 424, 428 (D. Ariz. 1992); see also Hicks v. Gates Rubber Co., 833 F.2d 1406, 1416 (10th Cir. 1987) (allowing racial and sexual harassment to be considered together when evaluating hostile environment). One scholar laments that there have been too few attempts to determine whether a woman's race or ethnicity makes her a more likely target of harassment. Skaine, supra note 32, at 182.
83. Bornstein, supra note 9, at 1-50.
84. Skaine, supra note 32, at 180 (indicating that women with college degrees were overrepresented in the reporting rate, even though most victims "are in the lower positions of occupational and educational structure").
85. Rowe, supra note 3, at 164.
86. Id.
87. Id. at 165-66.
88. Howard Gadlin, Careful Maneuvers: Mediating Sexual Harassment, 7 Negotiation J. 139, 144 (1991). In this sense, unfortunately, they are not alone in placing the blame with themselves, as "[s]ociety has blamed women for letting [the harassment] happen." Skaine, supra note 32, at 182.
89. See Rowe, supra note 3, at 165.
90. Id.
91. Id. at 162.
92. Id. at 165.
93. Gadlin, supra note 81, at 146.
94. Id. at 145.
95. Costello, supra note 4, at 16.
96. Id. at 16-17.
97. Id. at 17.
98. Andrea Williams, AAA's Sexual Harassment Claims Resolution Process, 20 Colo. Law. 1217, 1217 (1993); see, e.g., Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 463 (N.J. 1993) ("[T]he existence of effective preventative mechanisms provides some evidence of due care on the part of the employer.").
99. Costello, supra note 4, at 16.
100. Skaine, supra note 32, at 183.
101. Id. at 184.
102. Id.
103. Mark S. Umbreit, Mediating Interpersonal Conflicts: A Pathway to Peace 144-45 (1995) ("Through open discussion of feelings, victim and offender can deal with each other as people, oftentimes from the same neighborhood, rather than as stereotypes and objects.").
104. Costello, supra note 4, at 16.
105. Gadlin, supra note 81, at 147.
106. Id.
107. Id.
108. Williams, supra note 91, at 1217.
109. Alan F. Westin & Alfred G. Feliu, Resolving Employment Disputes Without Litigation 1 (1988).
110. Id.
111. Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 465 (N.J. 1993).
112. Id. (citing Abrams, supra note 33, at 1215).
113. Id. (citing Abrams, supra note 33, at 1216).
114. "Judgments - and even opinions - in sexual harassment cases give employers only an anecdotal notion of what behavior is unacceptable, and otherwise fail to direct employers toward more satisfactory behavior." Abrams, supra note 33, at 1216.
115. Id.
116. Id.
117. See supra note 103 and accompanying text.
118. Wayne N. Outten, Evaluating Plaintiff's Case and Settlement Opportunities: Plaintiff's Perspective, in Litigation and Administrative Practice Course Handbook Series 7, 21 (Practicing Law Institute 1996), available in WESTLAW, 12 LERCMS 33.
119. Carol Kleiman, Dealing with Harassment: Firms Seek Advice to Head Off Incidents, Lawsuits, Chi. Trib., Oct. 15, 1991, at B1.
120. Id.
121. 42 U.S.C. § 1981a(b)(1) (1994) (allowing for punitive damages for discrimination violations committed with "malice or with reckless indifference to the federally protected rights of an aggrieved individual"); id. § 1981(b)(2) (indicating ceiling sums for compensatory damages based on number of employees); Barry Winograd, Men as Mediators in Cases of Sexual Harassment, Disp. Resol. J., Apr. 1995, at 40, 43.
122. Chan, supra note 44, at 25-26.
123. Andrea Williams, Model Procedures for Sexual Harassment Claims, Arb. J., Sept. 1993, at 66, 68.
124. Riger, supra note 6, at 208.
125. Chan, supra note 44, at 30-31.
126. Cohen, supra note 9, at 687. While this may help the court draw the line between acceptable personal relationships and unlawful behavior, see supra text accompanying notes 9-10, it could be "an invitation to attempt to discredit genuine victims of sexual harassment." Cohen, supra note 9, at 687.
127. Margaret J. Grover, Mediation of Sexual Harassment Claims, in ABA Tort and Insurance Practice Section Practice Tips 55, 55 (1995), available in WESTLAW, 24-SPG Brief 55.
128. Winograd, supra note 114, at 41.
129. See Grover, supra note 120, at 55.
130. 477 U.S. 57 (1986).
131. Id. at 69. In practice, both traditional and nontraditional women may find that their own actions are used against them in the unwelcomeness analysis. A woman who behaves in the most stereotypical ways - complimenting men, straightening their ties, "mov[ing] her body in a provocative manner," let alone eating dinner with the boss on a business trip, or remaining friendly even after rejecting his advances - may find that the sexual advances she rejects are, as a matter of law, not unwelcome. Similarly, women who act too much like men - who use "crude and vulgar language," or choose to eat with the men in the employee lunchroom - cannot be heard to complain of a worksite which is "permeated by an extensive amount of lewd and vulgar conversation and conduct." Chamallas, supra note 36, at 45 (citation omitted).
132. See, e.g., Fed. R. Evid. 412 (restricting admission of evidence of victim's sexual predisposition or other sexual behavior).
133. Ellen E. Schultz & Junda Woo, The Bedroom Ploy: Plaintiffs' Sex Lives Are Being Laid Bare in Harassment Cases, Wall St. J., Sept. 19, 1994, at A1.
134. Id. at A9. The only available opinion in this case is an affirmance on appeal of a grant of summary judgment to the employer. Stieber v. Journal Publishing Co., D.C. No. CIV-93-648-LH, 1996 WL 599795, at *1 (10th Cir. 1996). The opinion lacks a complete factual recitation. Id.
135. Susan D. Ross, Proving Sexual Harassment: The Hurdles, 65 S. Cal. L. Rev. 1451, 1451 (1992).
136. Stephen M. Crow & Clifford M. Koen, Sexual Harassment: New Challenge for Labor Arbitrators?, Arb. J., June 1992, at 6, 8. Precisely because the unique situation of sexual harassment leaves a plaintiff without other extrinsic evidence of the events, she will often find it nearly impossible to prove that the harassment occurred. "[T]he difficulties associated with proving one's claim probably have a chilling effect on the willingness of a sexual harassment victim to file a grievance." Id.
137. Ross, supra note 128, at 1455. [M]any women have a "powerless" speaking style that makes them less credible as witnesses than those using a "powerful" style. Research shows that the "powerless" use "hedges" (like "I think"), "hesitation forms" (words like "um"), "polite forms" (such as "sir"), and "question intonation" (declaring something with "rising intonation so as to convey "uncertainty.") The research study showed: [W]itnesses of low social status - the poor and uneducated -were most likely to use this style of testimony. Female witnesses used the style more frequently than men. . . . Those witnesses in the taped trials whose social status in court was higher - for example, well-educated, white collar men and expert witnesses of both sexes - tended to use a style that exhibited relatively few features of the powerless style. Id. (quoting John M. Conley et al., The Power of Language: Presentations Style in the Courtroom, 1978 Duke L.J. 1375, 1380-81, 1386). But see Deborah Tannen, You Just Don't Understand: Women and Men in Conversation 225 (1990) ("If a linguistic strategy is used by a woman, it is seen as powerless; if it is done by a man, it is seen as powerful. Often, the labeling of 'women's language' as 'powerless language' reflects the view of women's behavior through the lens of men's.").
138. Ross, supra note 128, at 1455. [M]any women have a "powerless" speaking style that makes them less credible as witnesses than those using a "powerful" style. Research shows that the "powerless" use "hedges" (like "I think"), "hesitation forms" (words like "um"), "polite forms" (such as "sir"), and "question intonation" (declaring something with "rising intonation so as to convey "uncertainty.") The research study showed: [W]itnesses of low social status - the poor and uneducated -were most likely to use this style of testimony. Female witnesses used the style more frequently than men. . . . Those witnesses in the taped trials whose social status in court was higher - for example, well-educated, white collar men and expert witnesses of both sexes - tended to use a style that exhibited relatively few features of the powerless style. Id. (quoting John M. Conley et al., The Power of Language: Presentations Style in the Courtroom, 1978 Duke L.J. 1375, 1380-81, 1386). But see Deborah Tannen, You Just Don't Understand: Women and Men in Conversation 225 (1990) ("If a linguistic strategy is used by a woman, it is seen as powerless; if it is done by a man, it is seen as powerful. Often, the labeling of 'women's language' as 'powerless language' reflects the view of women's behavior through the lens of men's.").
139. See infra note 187 and accompanying text.
140. For example, in a quid pro quo case, a qualified woman who was denied benefits because they were conferred on someone in a sexual relationship with the boss could sue. See supra note 55 and accompanying text. Similarly, in a hostile environment case, a plaintiff need not be the direct target of the illegal conduct to be afforded a legal remedy. See supra note 39.
141. Cohen, supra note 9, at 685.
142. See supra note 118 and accompanying text.
143. 5 U.S.C. § 7701(a) (1994) ("An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation.").
144. Id. § 7703(a)(1) ("Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain judicial review of the order or decision.").
145. Cohen, supra note 9, at 686.
146. 28 U.S.C. § 473(a)(6) (1994).
147. 5 U.S.C. §§ 571-583 (1994).
148. Fed. R. Civ. P. 16(c)(9).
149. Charles P. O'Connor & Anita W. Coupe, Employment ADR: There Is More Than Meets the Eye, Metropolitan Corp. Couns., Aug. 1995, at 10. External procedures traditionally involve third parties, such as arbitrators or mediators, while internal procedures happen within the company without the assistance of a third party. See id.
150. Negotiation has been characterized as "the mainstay of dispute resolution." Containing Legal Costs: ADR Strategies for Corporations, Law Firms, and Government 10 (Erika S. Fine ed., 1988) [hereinafter Containing Legal Costs].
151. See infra note 168 and accompanying text.
152. See infra note 147 and accompanying text.
153. The mini-trial is denned as an "abbreviated case presentation[] made by counsel to principals from each side and, if desired, a neutral advisor of the parties' choosing. . . . Afterwards, the [parties] meet on their own to negotiate settlement." Containing Legal Costs, supra note 142, at 8. The drawback to a mini-trial is that the role of the neutral advisor is to assess the viability of each side's position, but not necessarily to encourage or facilitate settlement. See id.
154. In fact-finding, a neutral third party with expertise in the substantive legal area (i.e., sexual harassment) reviews the case and evaluates dispute facts. Id. at 9-10.
155. Black's Law Dictionary 70 (abr. 6th ed. 1991).
156. Arbitration is "the most rigid and often the least satisfactory method[] of conflict resolution for the participants." Jay Folberg & Alison Taylor, Mediation 26 (1984).
157. Peter M. Panken et al., Avoiding Employment Litigation: Alternative Dispute Resolution of Employment Disputes in the 90's, 69, 73 (A.L.I./A.B.A. Dec. 5, 1996), available in WESTLAW, SB 31 ALI-ABA 69.
158. George H. Singer, Employing Alternative Dispute Resolution: Working at Finding Better Ways to Resolve Employer-Employee Strife, 72 N.D. L. Rev. 299, 301 (1996).
159. See Vern E. Hauck, Introduction to Arbitrating Sexual Harassment Cases 1-1, 1-3 (Vern E. Hauck ed., 1995).
160. Nancy Sedmak, Arbitration of Discrimination Claims Should Not Be Mandatory, Panelists Say, 153 Daily Lab. Rep. (BNA) C-3 (Aug. 9, 1995).
161. 500 U.S. 20 (1991).
162. Id. at 33.
163. The Ninth Circuit refused to compel arbitration in a sexual harassment case, however, where the plaintiff was not given enough information about the arbitration clause of the contract. Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1305 (9th Cir. 1994), cert. denied, 116 S. Ct. 61 (1995). "[A] Title VII plaintiff may only be forced to forego her statutory remedies and arbitrate her claims if she has knowingly agreed to submit such disputes to arbitration." Id.
164. Panken et al., supra note 148, at 80.
165. See infra note 187 and accompanying text.
166. Hauck, supra note 150, at 1-21.
167. William M. Howard, Arbitrating Employment Discrimination Claims: Do You Really Have To? Do You Really Want To?, 43 Drake L. Rev. 255, 287-88 (1994).
168. Hauck, supra note 150, at 1-21 ("Published labor arbitration awards represent a small portion of the total number of grievances dealing with sexual harassment arbitrated each year . . . .").
169. Some generalizations about sexual harassment in the arbitration context can be drawn, and this information is useful in helping parties to a harassment dispute evaluate the viability of the claim. For instance, arbitrators consistently uphold discharges of harassers where there has been physical touching of any kind, including a kiss on the cheek. William A. Nowlin, Sexual Harassment in the Workplace: How Arbitrators Rule, 43 Arb. J. 31, 38 (1988). In general, the harasser will be discharged by an arbitrator when the harassment was excessive, when it occurred without remorse, when it affected the working environment, or when it tarnished the company's public image. Hauck, supra note 150, at 1-22.
170. Chris Baker, Comment, Sexual Harassment v. Labor Arbitration: Does Reinstating Sexual Harassers Violate Public Policy?, 61 U. Cin. L. Rev. 1361, 1381-82 (1993).
171. Id. at 1383.
172. Singer, supra note 149, at 321. [C]ourts generally limit their review to the consideration of whether the arbitrator performed the assigned role. The review of an arbitrator's adherence to performance standards does not, in theory, involve scrutiny of the award itself. The sufficiency of the evidence on which an arbitrator bases his or her decision is likewise not a matter for judicial review. In this regard, appeal rights do not generally parallel those commonly found in civil litigation; errors of fact or law by the arbitrator are usually not subject to review on appeal. Id. (citations omitted).
173. Baker, supra note 161, at 1361.
174. Douglas E. Ray, Sexual Harassment, Labor Arbitration and National Labor Policy, 73 Neb. L. Rev. 812, 829-30 (1994).
175. Id. at 830.
176. See supra part I.E.
177. Adam J. Conti, Mediation of Work-Place Disputes: A Prescription for Organizational Health, 11 Employee Rel. L.J. 291, 291 (1985). Folberg and Taylor, professors at Lewis and Clark Law School, offer the following definition of mediation: Mediation is first and foremost a process that transcends the content of the conflict it is intended to resolve. . . . It can be defined as the process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options, consider alternatives, and reach a consensual settlement that will accommodate their needs. . . . The most useful way to look at mediation is to see it as a goal-directed, problem-solving intervention. Folberg & Taylor, supra note 147, at 7-8.
178. Charles A. Bethel & Linda R. Singer, Mediation: A New Remedy for Cases of Domestic Violence, 7 Vt. L. Rev. 15, 17 (1982) (describing mediation as "prospectively rather than retrospectively oriented").
179. Conti, supra note 168, at 295. Through this process of exploration and understanding, resolution is approached by one of three ways - by each side making movement toward a common ground, by the realization of one or both parties that the actual problem was something other than initially perceived, or through the synergistic effect of the process itself, which is the most creative approach. Id.
180. The mediator is the "[n]eutral third person who helps disputing parties to reach agreement through the mediation process." Black's Law Dictionary 678 (abr. 6th ed. 1991).
181. Folberg & Taylor, supra note 147, at 39-41.
182. Id. at 40-42.
183. Id. at 41-43.
184. Id. at 38-40.
185. See id. at 49-50.
186. Id. at 53-58.
187. Id. at 60-62.
188. Cindy C. Ettingoff & Gregory Powell, Use of Alternative Dispute Resolution in Employment-Related Disputes, 26 U. Mem. L. Rev. 1131, 1135 (1996). Mediation has been used to resolve collective bargaining impasses between unions and management since at least as early as 1947. . . . Mediation has also been used recently to aid parties in reaching divorce settlements; as an alternative to small claims court; and . . . to resolve a broad variety of disputes ranging from minor criminal offenses to landlord-tenant disagreements. Conti, supra note 168, at 292 (citations omitted).
189. See, e.g., Aswad, supra note 5, at A-9 (quoting Berkley, California attorney Amy Oppenheimer in support of mediation because it "gives [parties] a chance to be heard"); Mediation Can Work Well Adjudicating Sex Harassment Claims, ABA Panel Says, 155 Daily Lab. Rep. (BNA) D-9 (Aug. 15, 1994), available in WESTLAW, 1994 DLR 155 D9 (stating that attorneys from San Francisco and Florida firms recommended mediation for sexual harassment claims at ABA annual meeting); Simon J. Nadel, Sexual Harassment: Costly Workplace Incidents Persist; Innovative Approaches Recommended, 88 Daily Lab. Rep. (BNA) CC-1, CC-2 (May 7, 1996) ("New York attorney Brody [senior counsel to the labor and employment group of Gibney, Anthony & Flaherty] proposes mediation as a solution to sexual harassment charges, noting that because sexual harassment is a 'profound interpersonal problem,' addressing it requires discussion and accommodation."); Sedmak, supra note 151, at C-3 (listing lawyers from New York and San Francisco extolling mediation for sexual harassment cases, partly because of its educative element); Sexual Harassment Claims Prime Area for Mediation, Attorney Tells Seminar, 133 Daily Lab. Rep. (BNA) A-4 (July 10, 1992), available in WESTLAW, 133 DLR A-4 (indicating that Washington, D.C. attorneys James Heller and Francine Weiss endorsed mediation for sexual harassment claims).
190. See, e.g., Aswad, supra note 5, at A-9 (quoting Berkley, California attorney Amy Oppenheimer in support of mediation because it "gives [parties] a chance to be heard"); Mediation Can Work Well Adjudicating Sex Harassment Claims, ABA Panel Says, 155 Daily Lab. Rep. (BNA) D-9 (Aug. 15, 1994), available in WESTLAW, 1994 DLR 155 D9 (stating that attorneys from San Francisco and Florida firms recommended mediation for sexual harassment claims at ABA annual meeting); Simon J. Nadel, Sexual Harassment: Costly Workplace Incidents Persist; Innovative Approaches Recommended, 88 Daily Lab. Rep. (BNA) CC-1, CC-2 (May 7, 1996) ("New York attorney Brody [senior counsel to the labor and employment group of Gibney, Anthony & Flaherty] proposes mediation as a solution to sexual harassment charges, noting that because sexual harassment is a 'profound interpersonal problem,' addressing it requires discussion and accommodation."); Sedmak, supra note 151, at C-3 (listing lawyers from New York and San Francisco extolling mediation for sexual harassment cases, partly because of its educative element); Sexual Harassment Claims Prime Area for Mediation, Attorney Tells Seminar, 133 Daily Lab. Rep. (BNA) A-4 (July 10, 1992), available in WESTLAW, 133 DLR A-4 (indicating that Washington, D.C. attorneys James Heller and Francine Weiss endorsed mediation for sexual harassment claims).
191. See, e.g., Aswad, supra note 5, at A-9 (quoting Berkley, California attorney Amy Oppenheimer in support of mediation because it "gives [parties] a chance to be heard"); Mediation Can Work Well Adjudicating Sex Harassment Claims, ABA Panel Says, 155 Daily Lab. Rep. (BNA) D-9 (Aug. 15, 1994), available in WESTLAW, 1994 DLR 155 D9 (stating that attorneys from San Francisco and Florida firms recommended mediation for sexual harassment claims
192. Ettingoff & Powell, supra note 179, at 1150.
193. Id. at 1151.
194. Id.
195. See James K. Hoenig, Mediation in Sexual Harassment: Balancing the Sensitivities, Disp. Resol. J., Dec. 1993, at 51, 53.
196. The adversarial approach of traditional litigation, on the other hand, is "uniquely unsuited to resolving these claims . . . [because it] has difficulty in appreciating the gradations along the sexual harassment continuum." Williams, supra note 116, at 68.
197. Sedmak, supra note 151, at C-3.
198. Id.
199. Michael D. Young, How to Use ADR to Your Advantage: Effective Participation in the Mediation Process, in How to Use Alternative Dispute Resolution to Your Advantage 65, 79 (1995) (on file with the Fordham Law Review).
200. Stephen B. Goldberg & Jeanne M. Brett, Disputants' Perspectives on the Differences Between Mediation and Arbitration, 6 Negotiation J. 249, 250-51 (1990).
201. See infra part V.D. While the mediator has discretion in structuring a mediation, there is no preset course that the mediation must take. As such, parties are in the position to make procedural requests of the mediator.
202. Jack Etheridge, Mending Fences: Mediation in the Community, in Dispute Resolution Devices in a Democratic Society 73, 77 (The Roscoe Pound-American Trial Lawyers Foundation 1985).
203. Conti, supra note 168, at 302.
204. Grover, supra note 120, at 56.
205. See Michael W. Hawkins, Alternative Dispute Resolution: An Alternative for Resolving Employment Litigation and Disputes, 20 N. Ky. L. Rev. 493, 494-95 (1993).
206. Because both judges and arbitrators render decisions the parties are bound by law or contract to accept, the parties have no influence over the specific terms of the remedy granted.
207. Folberg & Taylor, supra note 147, at 8 ("Mediation is more concerned with how the parties will resolve the conflict and create a plan than with personal histories.").
208. Grover, supra note 120, at 55-56.
209. Conti, supra note 168, at 302. Additionally, mediation should be preferred because even if an employee would otherwise have wanted to remain in the workplace, the acrimonious nature of litigation and arbitration may sever the relationship between the parties, making continued employment impossible.
210. See supra note 91 and accompanying text.
211. See infra part IV.B.
212. Amy Holzman, Note, Denial of Attorney's Fees for Claims of Sexual Harassment Resolved Through Informal Dispute Resolution: A Shield for Employers, A Sword Against Women, 63 Fordham L. Rev. 245, 248-50 (1994). "[A] company can do much to . . . avoid liability for hostile environment sexual harassment if it can show that . . . it has promulgated a company policy against sexual harassment that encourages employees to notify the company of any such claim . . . ." John L. Valentino, An Effective Employer Response to Complaints of Sexual Harassment, N. Y. St. B.J., Mar.-Apr. 1996, at 36, 37-38. Having a dispute resolution process in place can also help an employer avoid suits by the accused "claiming damages arising from the charges made against [him]." Williams, supra note 26, at 1218; see also Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 463 (N.J. 1993) (holding that preventative measures can be evidence of "due care").
213. Amy Holzman, Note, Denial of Attorney's Fees for Claims of Sexual Harassment Resolved Through Informal Dispute Resolution: A Shield for Employers, A Sword Against Women, 63 Fordham L. Rev. 245, 248-50 (1994). "[A] company can do much to . . . avoid liability for hostile environment sexual harassment if it can show that . . . it has promulgated a company policy against sexual harassment that encourages employees to notify the company of any such claim . . . ." John L. Valentino, An Effective Employer Response to Complaints of Sexual Harassment, N. Y. St. B.J., Mar.-Apr. 1996, at 36, 37-38. Having a dispute resolution process in place can also help an employer avoid suits by the accused "claiming damages arising from the charges made against [him]." Williams, supra note 26, at 1218; see also Lehmann v. Toys 'R' Us, Inc., 626 A.2d 445, 463 (N.J. 1993) (holding that preventative measures can be evidence of "due care").
214. Holzman, supra note 201, at 250.
215. See Grover, supra note 120, at 56.
216. See id.; Hoenig, supra note 184, at 53.
217. See Ettingoff & Powell, supra note 179, at 1160.
218. Aswad, supra note 5, at A-9.
219. See Irvine, supra note 23, at 50.
220. Janet Rifkin, Mediation from a Feminist Perspective: Promise and Problems, 2 J.L. & Inequality 21, 30 (1984).
221. Mediation Can Work Well Adjudicating Sex Harassment Claims, ABA Panel Says, supra note 180, at D-9. ("Mediation seeks to neutralize the power that one party has over the other and to put both parties in a position to negotiate.").
222. See Gadlin, supra note 81, at 149; Grover, supra note 120, at 55; Thomas F. Levak, Sexual Harassment in the Workplace: The Alternative Dispute Resolution (ADR) Option, 12 LERC Monograph Ser. 33, 35 (1993), available in WESTLAW, 12 LERCMS 33.
223. Irvine, supra note 23, at 28.
224. Id.
225. See supra notes 107-09 and accompanying text.
226. While sexual harassment is indeed a different cause of action than a garden variety tort action, neither potential plaintiff should be forced to litigate. Sexual harassment plaintiffs have already been victimized because of their gender, and complainants should not be forced to subordinate their choice of an alternative dispute resolution method to contribute to a body of sexual harassment law. This is particularly so in light of court opinions' failure to educate the workplace and its inhabitants about what conduct is illegal. See supra notes 107-09 and accompanying text. Ironically, the author advancing the argument against mediation quotes the following in support of the proposition that women should litigate: "'[F]orcing unwilling women to take part in a process which involves much personal exposure sends a powerful social message: it is permissible to discount the real experience of women in the service of someone else's idea of what will be good for them . . . or good for the system.'" Irvine, supra note 23, at 50 (quoting Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545, 1607 (1991)). This is, however, precisely why women should not be forced to litigate their sexual harassment claims.
227. See infra part V.H.
228. Costello, supra note 4, at 21.
229. Levak, supra note 210, at 34.
230. Gadlin, supra note 81, at 145-46.
231. Levak, supra note 210, at 34-35.
232. Grover, supra note 120, at 57.
233. Williams, supra note 91, at 1219.
234. Winograd, supra note 114, at 41 ("For some victims, the need to hear an acknowledgment that conduct was offensive, coupled with an apology for the uninvited action, will be a necessary precondition for the negotiation and acceptance of more traditional forms of relief."); see also Williams, supra note 116, at 73 (suggesting "letters of apology" as a creative remedy in sexual harassment mediations).
235. Winograd, supra note 114, at 43.
236. See Hoenig, supra note 184, at 51.
237. Grover, supra note 120, at 57. This is not to imply that women should not be financially compensated for any injuries they suffer as a result of workplace sexual harassment, but merely that money may not be the only, or perhaps even the foremost, remedy in which employees are interested.
238. Id. at 56-57.
239. Levak, supra note 210, at 33.
240. Cindy Fuzzi, Book Review, Disp. Resol. J., Jan. 1995, at 85 (reviewing Julie M. Tamminen's Sexual Harassment in the Workplace: Managing Corporate Policy (1994)).
241. Cindy Fuzzi, Book Review, Disp. Resol. J., Jan. 1995, at 85 (reviewing Julie M. Tamminen's Sexual Harassment in the Workplace: Managing Corporate Policy (1994)).
242. See Meredith, supra note 2, at 62.
243. Ettingoff & Powell, supra note 179, at 1133 (citing Steven M. Kaufman & John A. Charin, Directing the Flood: The Arbitration of Employment Claims, 10 Lab. Law. 217 (1994)).
244. Lamont E. Stallworth & Martin H. Malin, Workforce Diversity, Disp. Resol. J., June 1994, at 28.
245. Judith Meyer, Mediation Works . . . With the Least Damage Done to the Parties' Egos and Pocketbooks, Disp. Resol. J., Apr.-June 1995, at 46.
246. Grover, supra note 120, at 55-56.
247. Id. at 56.
248. Jeanne C. Miller, ADR In Employment Matters, in How to Use Alternative Dispute Resolution to Your Advantage, supra note 188, at 163.
249. Id.
250. Howard, supra note 158, at 289.
251. Costello, supra note 4, at 19; Howard, supra note 158, at 288.
252. Costello, supra note 4, at 19.
253. EEOC Guidelines, supra note 46, § 1604.11(f).
254. The Civil Rights Act of 1991: Hearings, supra note 6, at 198 (statement of Dr. Freada Klein).
255. See Valentino, supra note 201, at 38; Michael B. Reuben & Isaac M. Zucker, Remedying Sexual Harassment: A Primer, Litig., Winter 1995, at 44.
256. EEOC Policy Statement on Alternative Dispute Resolution, 137 Daily Lab. Rep. (BNA) A-1 (July 18, 1995).
257. Several authorities were used as guidance in the drafting of this provision, including: Model Standards of Conduct for Mediators §§ 1, 2, 4, 5 (American Arbitration Association et al., 1994); Containing Legal Costs, supra note 142, at 51; A Drafter's Guide to Alternative Dispute Resolution 72-73 (Bruce E. Meyerson & Corinne Cooper, eds., 1991); Resolving Employment Disputes: A Manual on Drafting Procedures, 2, 10 (American Arbitration Association, 1993); Howard J. Aibel & George H. Friedman, Drafting Dispute Resolution Clauses in Complex Business Transactions, Disp. Resol. J., Jan.-Mar. 1996, at 17; Levak, supra note 210, at 34-35; Anthony J. Mercorella, Alternative Dispute Resolution -Expediting Cost Efficient Resolution of Claims, in How to Use Alternative Dispute Resolution to Your Advantage, supra note 188, at 17-19; David M. Shacter, To Litigate or Not? - Time for A.D.R., 28 Beverly Hills B.J. 30, 33 (1994).
258. Several authorities were used as guidance in the drafting of this provision, including: Model Standards of Conduct for Mediators §§ 1, 2, 4, 5 (American Arbitration Association et al., 1994); Containing Legal Costs, supra note 142, at 51; A Drafter's Guide to Alternative Dispute Resolution 72-73 (Bruce E. Meyerson & Corinne Cooper, eds., 1991); Resolving Employment Disputes: A Manual on Drafting Procedures, 2, 10 (American Arbitration Association, 1993); Howard J. Aibel & George H. Friedman, Drafting Dispute Resolution Clauses in Complex Business Transactions, Disp. Resol. J., Jan.-Mar. 1996, at 17; Levak, supra note 210, at 34-35; Anthony J. Mercorella, Alternative Dispute Resolution -Expediting Cost Efficient Resolution of Claims, in How to Use Alternative Dispute Resolution to Your Advantage, supra note 188, at 17-19; David M. Shacter, To Litigate or Not? - Time for A.D.R., 28 Beverly Hills B.J. 30, 33 (1994).
259. Several authorities were used as guidance in the drafting of this provision, including: Model Standards of Conduct for Mediators §§ 1, 2, 4, 5 (American Arbitration Association et al., 1994); Containing Legal Costs, supra note 142, at 51; A Drafter's Guide to Alternative Dispute Resolution 72-73 (Bruce E. Meyerson & Corinne Cooper, eds., 1991); Resolving Employment Disputes: A Manual on Drafting Procedures, 2, 10 (American Arbitration Association, 1993); Howard J. Aibel & George H. Friedman, Drafting Dispute Resolution Clauses in Complex Business Transactions, Disp. Resol. J., Jan.-Mar. 1996, at 17; Levak, supra note 210, at 34-35; Anthony J. Mercorella, Alternative Dispute Resolution -Expediting Cost Efficient Resolution of Claims, in How to Use Alternative Dispute Resolution to Your Advantage, supra note 188, at 17-19; David M. Shacter, To Litigate or Not? - Time for A.D.R., 28 Beverly Hills B.J. 30, 33 (1994).
260. Several authorities were used as guidance in the drafting of this provision, including: Model Standards of Conduct for Mediators §§ 1, 2, 4, 5 (American Arbitration Association et al., 1994); Containing Legal Costs, supra note 142, at 51; A Drafter's Guide to Alternative Dispute Resolution 72-73 (Bruce E. Meyerson & Corinne Cooper, eds., 1991); Resolving Employment Disputes: A Manual on Drafting Procedures, 2, 10 (American Arbitration Association, 1993); Howard J. Aibel & George H. Friedman, Drafting Dispute Resolution Clauses in Complex Business Transactions, Disp. Resol. J., Jan.-Mar. 1996, at 17; Levak, supra note 210, at 34-35; Anthony J. Mercorella, Alternative Dispute Resolution -Expediting Cost Efficient Resolution of Claims, in How to Use Alternative Dispute Resolution to Your Advantage, supra note 188, at 17-19; David M. Shacter, To Litigate or Not? - Time for A.D.R., 28 Beverly Hills B.J. 30, 33 (1994).
261. The description would define mediation, explain the logistics of the process, and would largely mirror the discussion in supra part III.A.
262. See, e.g., Model Standards of Conduct for Mediators, supra note 244. These standards were drafted by representatives from the American Arbitration Association, the American Bar Association, and the Society of Professionals in Dispute Resolution. Id. "The model standards of conduct for mediators are intended to perform three major functions: to serve as a guide for the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes." Id. at i.
263. The amount and schedule of payments should: (a) be set on a sliding scale, where the amount and schedule of payments are based on the employee's income and (b) apply on a company-wide basis to all mediations. The scale should be determined in advance of any dispute.
264. See Rowe, supra note 3, at 171.
265. Id. at 170. "[A]n employer must choose between a very high degree of complainant choice, in dealing with concerns of harassment - and having a high reporting rate - or, on the other hand, insisting on mandatory reporting to an Equal Opportunity-type office and having a lower reporting rate." Id. at 171.
266. Richard B. Schmitt, More Law Firms Seek Arbitration for Internal Disputes, Wall St. J., Sept. 26, 1994, at B18.
267. Resolving Employment Disputes: A Manual on Drafting Procedures, supra note 244, at 3.
268. The explication of the legal framework for quid pro quo and hostile environment provided in parts I.A-C will aid in this determination.
269. See infra notes 263-64 and accompanying text.
270. See Sedmak, supra note 151, at C-3.
271. See supra note 179 and accompanying text.
272. See supra note 169 and accompanying text. This is not to discount the role that discussion of past events will play in a mediation. The focus, however, should be on the resolution of those events.
273. See supra note 84 and accompanying text.
274. See, e.g., American Arbitration Association, National Rules for Resolution of Employment Disputes: Arbitration and Mediation Rules Rule 10, at 36 (1996) (hereinafter National Rules) ("The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a satisfactory resolution of their dispute.").
275. It is in the employer's best interest to provide the best possible information about the mediation process to potential aggrieved employees, as this will likely increase the number of employees willing to mediate their claims. The provision requires that the employer provide the employee with, at a minimum, a written description of mediation. This should not discourage employers from investing in other educational media, including books or videos, that would provide employees with further information.
276. See supra note 210 and accompanying text.
277. See supra note 258 and accompanying text.
278. See, e.g., National Rules, supra note 258, Rule 10, at 37. ("The mediator is authorized to end the mediation whenever, in the judgment of the mediator, further efforts at mediation would not contribute to a resolution of the dispute between the parties.").
279. See Conti, supra note 168, at 298 & n.19.
280. Bethel & Singer, supra note 169, at 19.
281. Mercorella, supra note 244, at 18.
282. If the case were truly meritless, there would be no reason to negotiate because the party defending against a meritless position would, as expected, have no reason to bargain.
283. Sex Discrimination, supra note 4, at D-29.
284. Folberg & Taylor, supra note 147, at 264.
285. Grover, supra note 120, at 55; Ettingoff & Powell, supra note 179, at 1142-43 (discussing the negative publicity for Baker & McKenzie flowing from the firm's loss of a multi-million dollar sexual harassment case); supra note 89 and accompanying text.
286. See supra notes 79 & 98 and accompanying text.
287. Ettingoff & Powell, supra note 179, at 1160.
288. Folberg & Taylor, supra note 147, at 271 ("A court would not necessarily be bound to honor this private contract, though it may be persuaded by public policy considerations to do so."). One court has gone so far in support of confidentiality, however, as to imply an unwritten confidentiality provision into a mediation. See NLRB v. Macaluso, 104 L.R.R.M. (BNA) 2097, 2099-100 (9th Cir. 1980).
289. Costello, supra note 4, at 20.
290. "It is . . . essential that all parties approach the mediation with open minds and good faith. To begin with, the employee should be sincere in asserting the grievance." Conti, supra note 168, at 297. This provision is also meant to protect against situations where one party is agreeing to mediate as a pretext for siphoning information from the other party that could influence litigation strategies. Conduct like this would violate the contract.
291. Shacter, supra note 244, at 33. "There is nothing more frustrating than spending several hours at the table helping the parties to embrace a more realistic view of their case that will allow them to settle, only to find that the person with authority either is not there or has to leave." Id.
292. Holzman, supra note 201, at 255.
293. Id.
294. Id.
295. Irvine, supra note 23, at 37.
296. See Ross, supra note 128, at 1454.
297. See Gadlin, supra note 81, at 149-50.
298. Id. at 149.
299. Elaine A. Wohlner & John A. Rymers, Civil Mediation: Where, When and Why It Is Effective, 24 Colo. Law. 2161, 2162 (1995). "The mediation process is successful only when controlled by the parties and not by the mediator or legal counsel." Id.
300. Id.
301. Id.
302. Gadlin, supra note 81, at 151.
303. Rifkin, supra note 208, at 30. In addition, a survey of women in past sexual harassment mediations indicates that many women have felt that the mediation process itself altered the power aspects of the controversy in their favor. Deborah G. Goolsby, Note, Using Mediation in Cases of Simple Rape, 47 Wash. & Lee L. Rev. 1183, 1212 (1990).
304. See supra notes 215-26 and accompanying text.
305. Shacter, supra note 244, at 31.
306. Rifkin, supra note 208, at 26. "[T]he mediator inevitably brings to the process, deliberately or not, certain ideas, knowledge, and assumptions." Id.
307. Model Standards of Conduct for Mediators, supra note 244, § II cmt. 1 ("A mediator shall avoid conduct that gives the appearance of partiality toward one of the parties. The quality of the mediation process is enhanced when the parties have confidence in the impartiality of the mediator.").
308. Sam Leonard, Mediation: The Book: A Step-by-Step Guide for Dispute Resolvers 84 (1994).
309. Winograd, supra note 114, at 40.
310. Tia S. Denenberg & R.V. Denenberg, The Future of the Workplace Dispute Resolver, Disp. Resol. J., June 1994, at 48, 50.
311. Id.
312. The earlier the parties can determine the merits of their respective cases, the more likely a settlement will be reached, and "this process is accelerated through the . use of a mediator." Aswad, supra note 5, at A-9.
313. Ettingoff & Powell, supra note 179, at 1143-44.
314. Wohlner & Rymers, supra note 283, at 2164 n.16.
315. Model Standards of Conduct for Mediators, supra note 244.
316. A Model Sexual Harassment Claim Resolution Process § V(B) (American Arbitration Association 1994) (providing that the mediator may be of either gender).
317. For example: In some instances, male mediators may find themselves at a loss for words, if not understanding, in dealing with the passions that have brought the disputants into conflict. In other instances, men may wonder if they, too, have offended others, perhaps unintentionally, thereby jeopardizing or questioning their own neutrality. Winograd, supra note 114, at 40.
318. Indeed, one might well argue that if gender standards like the "reasonable woman" standard run the risk of entrenching negative gender stereotypes, see supra note 35 and accompanying text, so too does a refusal to allow men to mediate sexual harassment cases. In addition, it is curious that special criticism is reserved for male mediators, who cannot force a settlement on the parties, but critics make no mention of male arbitrators or judges, whose rulings - presumably also reflecting their internal biases - are final and binding.
319. Winograd, supra note 114, at 41.
320. Id.; Grover, supra note 120, at 55; Levak, supra note 210, at 35.
321. Folberg & Taylor, supra note 147, at 144-46.
322. This lack of control on behalf of the mediators is problematic. Politeness or deference may create a hesitancy to intercede or to cover a point that appears to be in the other mediator's territory. Important points may slip through the mediation team like a tennis ball landing between new doubles partners. One mediator may fail to read the other's clues. The other, failing to see where the discussion is heading, may interrupt or divert the mediation. Id. at 145.
323. Levak, supra note 210, at 34. Indeed, the requirement of a bi-gender panel implies that a single mediator of either gender would be incapable of mediating sexual harassment cases. If the parties did not feel a prejudice prior to the mediation, the very fact that both genders must be represented on the mediation panel might well give parties needless cause for alarm.
324. See Prototype Agreement on Job Bias Dispute Resolution, 91 Daily Lab. Rep. (BNA) E-12 (May 11, 1995) ("Impartiality is best assured by the parties sharing the fees and expenses of the mediator and arbitrator.").
325. Denenberg & Denenberg, supra note 294, at 50.
326. Grover, supra note 120, at 55-56.
327. See Miller, supra note 235, at 163.
328. Under Title VII § 706(k), a successful sexual harassment plaintiff can recover her attorney's fees. See generally Holzman, supra note 201, at 246 (exploring informal dispute resolution and subsequent recovery of attorney's fees under Title VII).
329. See supra part V.G.