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Employment Discrimination Lawsuits
Employment Mediation in the Twenty-First Century:
Challenges in a Changing Environment
See also Introduction, Section
I, Section III, and Coda
II. Second-Generation Employment Mediation: Current Issues and
Future Directions
-
The Increasing Popularity of Mediation
-
Why Early, Broad-Gauged Mediation Is Best
-
Early Mediation
- Broad-Gauged Mediation
A. The Increasing Popularity of
Mediation
In recent years, mediation has been widely touted as an option
superior to litigation. Its advertised virtues [FN133]
include, first, its problem-solving
orientation: making matters right for the future replaces fixation
on whom to blame for past occurrences. In addition, it maximizes
party autonomy, allowing the affected individuals--in a confidential
environment--to fashion an agreement that tailors relief to their
own situation and incorporates terms beyond what a court or agency
could order. Such an accord is apt to be seen as fairer than one
imposed by third persons. Mediation, thus, offers the possibility
of integrative,
"win-win" solutions that meet the interests and needs
of both sides. Sometimes, too, it gives an opportunity for emotional
catharsis, helps to preserve or repair relationships between the
parties, and provides a broader education in conflict management.
Faster and simpler than litigation, mediation also yields both
monetary and non-monetary savings. Monetary savings include reductions
in costs connected with using attorneys, conducting discovery,
and diverting parties and witnesses from their usual productive
activity. Non-monetary savings are exemplified by reductions in
the amounts of stress and anxiety that are typically produced by
legal proceedings. Mediation can, in addition, pare backlogs in
courts and agencies.
Most of these benefits could, theoretically, be achieved by unassisted
negotiations. Realistically, though, the presence of a neutral
who can make judicious use of the confidential caucus dramatically
improves the bargaining process. For example, a mediator can provide
a needed reality-check, helping the parties evaluate the strengths--and
weaknesses--of their case. She can enhance the chances of settlement
because she knows more about a party's bottom line [FN134]
and, in general, his thoughts and concerns than does his opponent.
Also, she is able to advance a participant's suggestion as her
own, thereby avoiding "reactive devaluation" [FN135]
and reflexive rejection by the other side. Frequently, too, she
has the best judgment regarding those persons required to be at
the table. She can, for example, involve family members or friends
who possess a stake in the conflict, who have some degree of decisionmaking
power, or are able to furnish needed support to the plaintiff,
enhancing his or her capacity to make an informed and voluntary
choice. [FN136]
Simply put, the mediator adds value
to the negotiating process.
Good press about mediation has both caused and resulted from
its increasing use. Along with other forms of alternative dispute
resolution (ADR), such as open door policies, human resources and
peer review, ombudspersons, and arbitration, [FN137]
mediation in employment cases has dramatically increased in the
past decade. [FN138]
For one thing, the federal government's use of ADR has grown
substantially because of the passage of laws directing or encouraging
its establishment. [FN139]
These include the Civil Justice Reform Act, [FN140]
the Administrative Dispute Resolution Acts of 1990 [FN141]
and 1996, [FN142]
and the Alternative Dispute Resolution Act of 1998. [FN143]
The EEOC, on its part, has committed itself to ADR. For instance,
its "Agency Program to Promote Equal Employment Opportunity" mandates
that federal agencies provide ADR to their employees and attempt
to resolve complaints as early as possible. [FN144]
Virtually all federal agencies now offer ADR. [FN145]
The most widely touted initiative, in which I briefly participated,
has been REDRESS, sponsored by the United States Postal Service
(USPS); the name stands for "Resolve Employment Disputes,
Reach Equitable Solutions Swiftly." [FN146]
Created in 1994, in connection with a class action settlement,
[FN147]REDRESS
is based on so-called transformative mediation. [FN148] This
process focuses less on achieving agreement than on empowering
the parties to rely on their own capacity to solve problems and
acknowledge the other's concerns. Under its protocol, a worker
who files an informal complaint of discrimination may choose to
refer the matter to an outside (non-USPS) mediator; one is provided,
on the job, within a scant two to three weeks. [FN149]
As will be seen, the program has proved successful in several respects.
[FN150]
Further, the EEOC itself offers a mediation program, in which I
participate pro bono; it handles equal opportunity cases not resolved
by the federal agency when an administrative law judge, prior to
hearing, believes that settlement talks might be fruitful.
Mediation of employment-related disputes has become prevalent
in the private sector as well. [FN151]
"Increasingly more employers recognize that the use of mediation
makes good business sense." [FN152]
A 1995 Government Accounting Office study reported that fifty-two
percent of large private employers have ADR programs for non-union
personnel; another study, also published in 1995, "found that
57% of . . . large manufacturing firms had instituted some form
of ADR."
[FN153]
Most often, these programs are mandatory and multi-step, with review
by the human resources department, management panels, and mediation
being the steps most frequently used. [FN154]
Some mediation initiatives, moreover, involve the government
in non-governmental employee conflicts. For example, programs run
by the federal courts [FN155]
mediate employment-discrimination charges, in addition to other
types of matters, pursuant to a judge's order. In my experience,
sometimes the court merely ratifies what the parties request; at
other times, it twists arms to obtain consent or mandates the process
regardless of the participants' wishes. In certain areas, such
as the Southern and Eastern Districts of New York, where I volunteer,
neutrals agree to serve pro bono. [FN156]
The EEOC, where I also mediate, offers mediation on a strictly consensual
basis to some complainants and respondents in non-federal agency
cases. [FN157]
It does so very early on, before the employer files a response.
The program relies on both staff and (theoretically) compensated
contract mediators. Chronically under-funded, however, the program
tends to run out of money before the end of the fiscal year, thus
forcing the agency to recruit neutrals willing to work for free.
[FN158]
Finally, the relevant underlying statutes encourage the use of
ADR in employment discrimination cases. [FN159]
So, too, did the proposed National Employment Dispute Resolution
Act of 2001 (NEDRA). [FN160]
Among other things, NEDRA would have obligated all federal agencies,
courts, and businesses receiving $200,000 or more in federal funds,
to "establish an internal dispute resolution program or system
that provides, as a voluntary option, employee-disputant access
to external third-party certified mediators" to address complaints
of discrimination. [FN161]
At the behest of the employee, the employer would have had to participate
in the process and furnish and pay for the mediator. [FN162]
As one who devotes substantial time to mediation, I, predictably,
concur with those who expound its virtues. For the reasons previously
given, I think that this process is, in the main, superior to litigation
as a means of dealing with people's conflicts. [FN163]
I also believe the employment arena presents no exception to the
rule. On the contrary, job disagreements lend themselves especially
well to that approach. Such studies as exist support the view that
mediation, in both agency [FN164]
and workplace [FN165] contexts,
not only contributes to settling disputes, [FN166]
but also generally satisfies the parties. [FN167]
My own experience supports this optimistic conclusion, which
extends, as well, to matters in court. A final resolution occurs
in approximately three-quarters of the employment cases that I
handle. [FN168]
More importantly, many participants express contentment with the
process--sometimes even without obtaining money or other tangible
rewards.
For instance, Joan, an African-American employee, who felt very
hurt at what she construed as favoritism by her Caucasian former
supervisor toward a white Latina colleague, decided at the close
of the session to drop her EEOC charge despite the lack of a quid
pro quo. Joan stated that she had gotten what she desired merely
by receiving the opportunity to confront and question her boss
about the events that had so disturbed her. Other complainants
have spontaneously hugged or kissed me at the end, in gratitude
that the mediation had terminated their ordeal and allowed them
to move on with their lives. Significantly, these were not necessarily
cases in which the employee had received substantial monetary relief.
From the vantage of the respondent, systemic effects like cost
savings [FN169]
and docket reduction [FN170]
likely amount to the major reason for engaging in mediation. The
human side typically weighs less heavily with them than with complainants,
but there are even employees who evince little interest in anything
but the bottom line. Some employers' agents, however,
also express gratification about the improvement in personal relations
that the process tends to generate. [FN171]
Joan's boss, Joe, for example, who thought that he and Joan had
enjoyed excellent on-the-job rapport, was extremely upset by her
racial discrimination charge; by his account, he had paid the Latina
co-worker more attention because of some problems she was having
and not for any other reason. After lengthy discussion with Joe,
Joan told me in caucus that she no longer believed he had acted
out of bias. With her permission, I proceeded to orchestrate a
conversation in joint session in which she said she hadn't wanted
to accuse him of prejudice, but "after all these bad things
happened, [she] couldn't come up with any explanation other than
race." When Joe learned that Joan's feelings had undergone
change, he looked as though a hundred-pound weight had fallen from
his shoulders. I am convinced that Joe's relief stemmed from the
parties' new-found insight into each other, and not from any pragmatic
concern for his employer's (New York City's) legal liability.
In sum, mediation of job disputes is becoming increasingly popular
and, for the most part, deservedly so; I, therefore, support it.
Yet my experience strongly suggests adoption of a more nuanced
stance than simple endorsement.
Back to beginning of Section
II
See also Introduction, Section
I, Section III, and Coda
B. Why Early, Broad-Gauged Mediation
Is Best
Specifically, I conclude, first, that because major benefits
of mediation tend to erode with the passage of time and, in particular,
after the onset of litigation, it should take place as soon as
possible after the conflict in question arises [FN172]--preferably,
at the workplace level. [FN173]
The success of REDRESS [FN174]
and similar programs in non-governmental employment settings, [FN175]
which seek to extinguish early flickers of discontent before these
burst into flame, shows that this view is well-founded.
Second, I conclude, mediation should be made available for all
types of employment-related controversies--not just for those involving
claimed violations of legal rights and, most critically, not just
for complaints of unlawful discrimination. [FN176]
As will be shown, [FN177]
for a number of reasons, programs geared to the latter alone may
actually disserve the interests of both employers and workers.
These recommendations of early and broad-gauged mediation are
complementary. Later mediations will often occur in connection
with court or agency proceedings. [FN178]
Administrative bodies like the EEOC and similar state [FN179]
and local [FN180]
outfits will only handle disputes that fall within their stated
jurisdiction: charges of discrimination. Judicial referrals to
ADR programs will cover solely complaints that, on their face,
make out a cause of action. Since most employees, as we have noted,
have no legally cognizable basis for suing their employer except
under the civil rights laws, court-related mediation will also
tend to center on allegations of bias. [FN181]
Of course, parties in disagreement can hire a private mediator
at any time and negotiate any matter
they wish--regardless of whether the issues raised implicate legally
protected rights. But irrespective of whether or not discussions
are sponsored by a public body, mediation undertaken after the
commencement of litigation can hardly proceed without reference
to it; people bargain in the shadow of the law. [FN182]
Certainly, in my own experience, litigants (ordinarily represented
by counsel, at least by the time they file in court) focus heavily
on claims and defenses in their talks. As we will see, postponing
the process and, in effect, limiting its ambit sacrifices many
of mediation's potential benefits.
Some major employers do, happily, offer workplace dispute resolution
of extensive jurisdictional scope; these include PaineWebber, Credit
Suisse First Boston (CSFB), and McGraw Hill, to name a few. [FN183]
In the words of Elizabeth W. Millard, Director and Counsel of CSFB:
"Our program covers everything as well as everyone." [FN184]
Such global schemes even apply to ex-employees, [FN185]
an especially salutary feature since many second-generation complaints
involve workers who have been fired. Unfortunately though, other
companies and institutions--among them, the United States Customs
Service (USCS) [FN186]
and the USPS, which sponsors REDRESS [FN187]
-- confine their programs to claims of infringement of anti-discrimination
laws. In light of the fact that the USPS is "the second largest
employer in the country," [FN188]
and that the USCS also employs a significant number of people,
[FN189]
these limitations have a broad effect.
Still other employers, for instance, Alcoa fall midway along
the spectrum: they do not facially exclude complaints unrelated
to bias, but they do restrict coverage to assertions of violations
of law. [FN190]
In a variant of this model, some companies
permit workers to raise any issue in early stages of a "stepped"
process, while later stages, including mediation and arbitration,
cover only allegations involving legally protected rights. [FN191]
In an "at-will" world, however, the distinction between
limitations to legal claims and limitations to claims concerning
equal employment opportunity rights makes little difference, as
both types of complaints are based largely on discrimination.
Back to beginning of Section
II
See also Introduction, Section
I, Section III, and Coda
1. Early Mediation
There is widespread agreement with respect to my first conclusion
about mediation: "earlier is better" [FN192]--at
least, in the ordinary run of cases. Several reasons supporting
this view have application across the board; some, though, have
particular force in employment disputes.
For one thing, expenses rise and savings diminish when people
embark on litigation: above all, when they go to court. From a
settlement perspective, outlays for lawyers and other trappings
of an adversarial proceeding simply divert to third persons monies
that might otherwise go toward resolving the matter. In addition
to expending funds, parties incur opportunity costs when they must
deflect time and effort from productive work to activities such
as helping counsel with discovery and testifying at a deposition,
hearing, or trial.
Given the economics of employment litigation, discussed earlier,
plaintiffs usually do not incur significant costs during litigation;
however, the plaintiff's attorney does. So, too, do defendants,
who typically pay outside counsel hourly rates in the hundreds
of dollars and must defray disbursements as well. [FN193]
Furthermore, if the employee prevails at trial, the employer will
incur liability for his or her attorneys' fees; [FN194]
these can sometimes amount to hundreds of thousands of dollars.
[FN195]
A late settlement will also likely
reflect the fact that substantial fees have been incurred to that
point by counsel for the plaintiff. True, workplace mediations
may also require that the company absorb the cost of counsel, to
the extent that complainants desire representation. [FN196]
But that amount should be relatively trivial compared with post-trial
attorneys' fees, even when the latter are heavily discounted to
adjust both for the plaintiff's risk of losing and the time value
of money.
Finally, note that from the perspective of an agency or court,
any conflict that settles before becoming a "case" (and,
as we have seen, mediation generally promotes resolution) is one
less item on the docket. [FN197]
Conversely, even if a suit gets settled during litigation, it will
have taken some chunk of the system's resources as well as the
parties'.
In addition to enhancing tangible expenses, delay exacts a human
toll. The slow-moving adversarial process often causes tremendous
stress for the persons involved--in employment disputes, disproportionately
for the complainant. He or she is an individual; the opponent is
a business entity. Yet even a company operates through human agents,
[FN198]
some of whom also experience frustration, anxiety, and trauma.
Like other commentators, [FN199]
I have found that employment disputes are virtually always fraught
with emotion. When asked to describe his aims for the mediation
process, one of my plaintiffs replied: "To regain my emotional
wholeness."
While few actually articulate this wish, many others undoubtedly
feel that the events which triggered their complaint have dealt
grave blows to their self-confidence, trust in others, and optimistic
outlook on life. Work, after all, occupies a central part of our
existence. Most of us spend more waking hours on the job than at
home during the week, and much of our sense of identity and worth
is bound up with our occupation. [FN200]
Frequently, too, such negative emotions increase over time. For
those involved in litigation, time definitely does not heal all
wounds. The snail's-pace trek through an alien, hostile, combative
environment heightens feelings of pain, anger, and victimization.
Further, if, as is often true, the employee has been discharged,
she may be suffering economically for at least a part of this period.
Even assuming that she secures new employment, the plaintiff may
have lost ground in terms of salary, health insurance, pension
rights, and other benefits, which she may never regain entirely.
These circumstances only enhance bitterness and stress.
One of my cases furnishes a poignant illustration of how time
spent litigating instead of recovering can cast a pall over life.
Jerry, a middle-aged white man with a strong work ethic, was hired
by a major utility company upon his graduation from high school.
He started at the bottom of the ladder, but received promotions
over the years. By his mid-thirties, Jerry was earning a good salary
and supporting his wife and children comfortably. Then he made
an error in judgment. Several of his friends (Italian-American,
as is he) had fallen behind in paying their bills and their service
had been cut off; he turned it back on, thereby violating firm
policy. Jerry received no quid pro quo and, when an investigation
commenced, he admitted his misdeeds right away. The company, nonetheless,
fired him. There was evidence that others guilty of worse misconduct
had been retained and that certain members of management considered
persons of Italian extraction to be untrustworthy and "crime
prone."
Jerry, therefore, charged the utility with having discriminated
against him on the basis of national origin.
Following his discharge, Jerry's personal life imploded. It took
him over nine months to find a job and several years to reestablish
his career, in another part of the country, and earn money comparable
to what he had made before. During this period, Jerry was forced
to declare bankruptcy and live off the charity of his elderly father.
These circumstances engendered profound humiliation. In addition,
his wife divorced him and took their children back to New York.
Jerry suffered a heart attack and began to experience stomach ulcers.
When I met him, over a decade had elapsed--most of it spent in
ultimately fruitless proceedings before the state human rights
division. While the agency did find probable cause to believe that
bias played a role in his firing, it procured him no relief. [FN201]
So Jerry found himself in court, ordered
to participate in settlement talks, no nearer to his goals of restitution
and vindication than on the day of his termination, and fearing
that this new development simply augured more delay.
In caucus conversations, Jerry made plain that he blamed the
defendant not only for his financial woes--which by then were long
gone, though etched in acid in his memory--but also for the deterioration
in both his health and marital relations. Jerry could not understand
how hard it would be to prove that the company's actions "caused"
the latter, for purposes of damages. It was equally clear, however,
that what he regarded as the law's false promise had further entrenched
his feelings of bitterness and worsened his emotional state. Even
mediation, resulting in a six-figure monetary settlement, could
not put Jerry, still a tragic Humpty Dumpty, together again. He
wrote me the following:
I must inform you how disappointed I am in our system. It took
10 years to "fail" to right a wrong--the whole purpose
of our system's existence. It concerns me that delays and ineffectiveness
in our system must cripple many . . . . As we discussed, you never
get back the whole cake--but this is just a crumb and not even
a slice. This settlement does not come close to re-establishing
the stability and security I worked 16 years for and that was wrongfully
taken away. Nonetheless, late as it came, mediation got a positive
review: it succeeded in bringing "a human side to a bureaucratic
and cold proceeding."
It is unlikely that any amount of dollars would have reconciled
Jerry to his discharge. Yet, suppose that mediation, under the
auspices of the firm, had taken place right after, or even before,
his firing. Perhaps he could have convinced his employer that termination,
whether or not discriminatory, was overly harsh, and he would have
been retained or reinstated--possibly with a transfer to a different
department--with duties that did not lend themselves to the kind
of temptation to which he succumbed. Alternatively, he might have
negotiated one or more of the following terms: severance pay to
tide him over his months of unemployment; continued benefits, such
as insurance; retroactive resignation in lieu of dismissal; a neutral,
if not favorable, reference; and use of the firm's training or
outplacement programs (of special value in the new workplace).
In this scenario, would Jerry's marriage and health have lasted?
We cannot know. But early intervention would surely have bettered
his chances of moving on with life in a less damaged physical and
psychological state.
In addition to playing havoc with body and soul, litigation,
and the concomitant passage of years without resolution of the
triggering dispute, also tends to make
parties
"dig in." Having already incurred so many tangible or
intangible costs, they may be, at best, ambivalent about letting
go of the conflict. Even employers, who usually have less of an
emotional investment than employees, may postpone settlement--thus,
sending good money after bad. Also, given the amount of time spent
mired in the past, one or both sides may find it hard to acquiesce
in the mediator's plea to shift their focus to the future. [FN202]
Jerry, for example, endured agony during the mediation session.
He often seemed to reject not just a specific offer, but rather
the whole notion of settling; it was almost as though he could
not conceive of living without the lawsuit. Other plaintiffs I
have encountered assert that they want to go forward with the case
in order to "expose" the employer's misdeeds; unrealistically,
for the most part, they believe that the media will subject the
defendant to bad publicity. Still others insist they will feel
a sense of vindication, win or lose, by simply telling their tale
to a jury. I sometimes address this topic by exploring the likelihood
of summary judgment, which would deny them that opportunity. I
also ask them to question whether they will, in fact, gain any
satisfaction from a negative verdict. I know of more than one such
plaintiff who lost at trial and was devastated.
Notwithstanding that a good mediator usually can overcome blanket
resistance to settlement, the chance of achieving a creative, integrative
solution fades rapidly with time in employment cases. As mentioned
earlier, nowadays these often involve dismissals of the employee.
Even when he is not discharged, simmering resentment over grievances
like non-promotion or harassment may cause him to reach such a
level of frustration that he quits. [FN203]
While legally available, reinstatement ceases to be a practical
option after months, or years, have elapsed since the employee
was on the job. *521 Rarely does the defendant offer, or the plaintiff
seek, reinstatement in such circumstances. My practice starkly
illustrates this point. Approximately ninety-five percent of the
employees of private firms whom I have encountered no longer worked
for the defendant-employer. This statistic contrasts with a mere
twenty-five percent of the government worker-plaintiffs, who enjoy
civil service protection from unjustified firing instead of serving
at management's will. None of these plaintiffs, in either the public
or private sector, was rehired; few, I recall, even wanted to be.
Reinstatement aside, "old" cases generally offer little
scope for inventive bargaining. Negotiation generally focuses on
purely distributive damages issues.
To be sure, some modest non-monetary forms of relief crop up
upon occasion-for example: sanitizing a bad record, providing a
reference (if the complainant still requires one), and expressing "regret"
for what occurred. [FN204]
An actual apology smacks too much of a confession of "guilt" for
most defendants or their lawyers to stomach, even when the employer
quite clearly did something unfair, if not illegal.
Sometimes, too, the mediator can help the parties deal creatively
with dollars. For instance, the agreement between Derek and the
law firm that failed to hire him stipulated that a portion of the
money would go to a charity of Derek's choice in the name of Morris,
the senior partner. Other cases have culminated in structured settlements
of various kinds, taking account of the participants' needs with
respect to taxation [FN205]
and other matters. In addition, when making a mediator's proposal
of a compromise solution, I try to light on a sum that has particular
meaning for at least one party. As an illustration, where an employee
was denied a promotion, I picked an otherwise "ballpark" number
that equated to the marginal amount she would have earned had she
gotten the promotion and then quit two years later--as in fact
she did--to become a full-time mother. Contrary to what lawyers
frequently say to the mediator, it is never "just about money;" psychology
counts.
Nonetheless it remains true that early mediation holds considerably
more promise of specific, not purely monetary, relief. To some
degree, this phenomenon is due to another harmful effect of litigation
and delay: their tendency to lessen
mediation's ability to salvage or repair relationships. [FN206]
Association between the employer and the ex-employee has ordinarily
long since ended by the time litigation ensues: [FN207]
mutual commitment has been replaced by mutual distrust. In such
an atmosphere, parties often will not risk agreeing to terms that,
unlike an immediate payment, take time to fulfill or entail some
subjectivity in judging performance. Thus, for example, even where
the plaintiff is still unemployed, I have had trouble "selling"
outplacement or training programs run by the firm. Doubting the
employer's good faith, the employee usually prefers to walk away
with cash in hand; and although the company can furnish "in
kind"
benefits relatively cheaply, it may well be disinclined to renew
contact with the plaintiff. Indeed in some cases, workplace mediation
alone, very soon after a problem's onset, can salvage parties'
personal connections since "[o]ften, when an employee is suffering
disappointment, anxiety, and emotional stress from a work-related
incident, the employer's failure to take prompt action is perceived
as further evidence of a non-caring attitude." [FN208]
Despite the many considerations favoring early mediation, lawyers
may recommend postponement until discovery has been completed.
This position has some validity. Litigants need enough knowledge
to evaluate their case with reasonable confidence; discovery, however,
not only increases delay and expense, it also tends to harden positions.
That is particularly true with respect to party depositions. Fortunately,
the choice need not be all or nothing. Where it seems advisable,
counsel may engage in a limited pre-mediation exchange of basic
information and documents. [FN209]
In addition, during the mediation process, the mediator will often
encourage informal disclosure. [FN210]
If it becomes clear that more elaborate discovery is required,
the mediator can always suspend negotiations for this purpose.
Having already entered the picture, he or she has the ability to
hold the participants' feet to the fire so that talks resume within
a reasonable time, without a total loss of settlement momentum.
But perhaps most to the point, routine on-the-job mediation,
available, as I recommend, for any and all workplace disputes,
will likely implicate few incipient causes of action. At this stage,
too, the relevant facts should be easily accessible. Handled early,
the controversy need not mushroom in complexity. Lastly, to the
extent that litigation concerns do contraindicate prompt
mediation, these must be weighed against the advantages of curing
the problem as soon as possible. I believe that most employees
would rather have a bird in the hand than two in the bush: that
is, a quick and specific remedy, such as an immediate transfer,
shift change, or upgraded evaluation, rather than the hope of money
damages sometime in the indefinite future.
This being said, I want to make clear my view that even late
mediations are, ordinarily, better than none. The settlements that
they often produce can remove the stress of litigation and yield
psychological closure. At times, the parties may come to regard
each other in a friendlier light, in retrospect, [FN211]
thus replenishing the energy wasted for so long on negative feelings.
Still, I conclude where I began: the passage of time, with its
accompanying switch in focus from human problems to legal issues,
squanders much of mediation's potential value. That is especially
true because employment claims must usually be articulated in terms
of invidious discrimination, an accusation that "raises the
temperature"
of the dispute and "puts the moral reputation of the employer
and its agents on the line." [FN212]
Back to beginning of Section
II
See also Introduction, Section
I, Section III, and Coda
2. Broad-Gauged Mediation
I have argued that mediation not only ought to be promptly held,
but also should be plenary in scope, encompassing virtually all
employment-related issues instead of dealing solely with claims
of violations of legal rights-which, in general, boil down to complaints
of unlawful bias. As previously noted, my contention presupposes
access to workplace mediation since courts and human rights agencies
can only deal with the matter on their dockets: that is, a charge
of discrimination. While some employers do offer broad-gauged schemes
of the type I favor, others (notably, the mammoth USPS) limit theirs
to allegations of denial of equal employment opportunity.
Put simply, such a restriction is less than optimal; worse, it
may be counterproductive. A variety of reasons support my conclusion.
First, consider that employment discrimination claims are meeting
with an increasingly skeptical, if not downright cynical, response.
Surveys conducted by federal circuit
court task forces on gender, racial, and ethnic bias report that
a significant number of district judges believe these cases occupy
an unwarranted amount of judicial time and, in the main, lack any
merit. [FN213]
Indeed, if one equates merit with provability, these naysayers
may be correct. As noted earlier, second-generation discrimination
is often subtle or even unconscious and, hence, frequently resists
efforts to demonstrate unlawful intent. [FN214]
This disaffection plays out, moreover, against a backdrop of
growing hostility to what many people regard as a generally excessive
solicitude for minorities. With respect to race, for example, the
deepest fault line in our society, Howard Gadlin, an ombudsperson
at the National Institutes of Health, writes:
These days, most whites believe, racism is the exception . .
. . While there is some acknowledgement of institutional racism,
most whites seem to believe at the same time that there is a preference
for people of color; it is they who have the advantage when it
comes to admission to schools or applications for employment. [FN215]
Like views have been expressed about other protected groups. The
attitudes in question, blatant or latent, have surfaced in judicial
opinions [FN216]
and laws [FN217]
rejecting affirmative action in various settings, as well as in
academic writings [FN218]
and the popular media. [FN219]
Although I do not share the perspective described by Gadlin,
I do agree that it is widespread. [FN220]
As a kind of "background noise," it probably contributes
to negative, albeit unconscious, feelings about particular employees'
claims, making it hard for judges and jurors to "hear"
and credit plaintiffs' narratives and draw inferences against the
defendant. Such underground bias--or simple absence of understanding,
where similar life experience is lacking--may lead to failures
to recognize valid, though hard to prove, grievances. Further,
to the extent that adverse job actions seem, even to the sensitive
observer, not to be due to discrimination, future complainants
will confront yet tougher obstacles. To paraphrase United States
Supreme Court Justice Robert H. Jackson: "It must prejudice
the occasional meritorious [discrimination complaint] . . . to
be buried in a flood of worthless ones. He who must search a haystack
for a needle is likely to end up with the attitude that the needle
is not worth the search." [FN221]
Otherwise put, an overall lack of success in suits, from whatever
cause, will only reinforce the notion that most plaintiffs are
merely disgruntled employees--not the victims of employer prejudice.
My present concern, though, is less with the litigation problems
of job discrimination claims than with the counterproductive effects
that "racializing and genderizing everything" [FN222]
and, by extension, viewing every conflict involving a member of
a protected class through the lens of forbidden bias, can have
on the workplace. Companies designing internal ADR programs should
take these effects into account when making the initial, critical
choice whether to target solely allegations of prejudice or, as
I urge, establish a process that deals comprehensively with employment-connected
disputes.
What, then, are the potentially bad results of too narrow a focus
on race or other statutory classifications? For one thing, some
firms may treat employees who fall under these rubrics with kid
gloves, accepting performance or behavior not countenanced in other
employees. The perceived need for "strategic" tolerance,
whether or not reasonably based, will alienate some employers from
those groups which most need, and deserve, to have their careers
fostered. [FN223]
To be sure, the laws themselves may tend to produce this type of
reaction. [FN224]
But while the structure of an in-house
program cannot eliminate all undesirable employer conduct influenced
by fears of liability, it can, at least, avoid enhancing preoccupation
with such concerns.
More sweepingly, as workers with grievances are encouraged to
see themselves as victims of discrimination and their complaints
(even in very marginal cases) as group-related rather than the
result of "garden-variety unfairness," [FN225]
workforce cohesion and the working environment will deteriorate.
[FN226]
Ironically, prospective plaintiffs may suffer most from efforts
to fit all job disputes into the Procrustean bed of discrimination.
Accentuating divisive categories like ethnicity, disability, race,
and religion may boomerang, causing resentment in co-workers as
well as employers.
Majority workers quite often regard their protected colleagues
as oversensitive individuals who demand and receive "special
treatment"
undeservedly. [FN227]
Listening to plaintiffs in mediation, I have noticed that some
are, indeed, more thin-skinned in certain ways than their cohorts.
For example, African-Americans tend to be touchy if asked to perform
what they perceive as menial chores, such as washing a supervisor's
car at the job site. [FN228]
But how much sensitivity is too much? Fellow workers may not understand
where the complainant "is coming from," in terms of past
experience with bias [FN229]--how
little empathy is too little? A New York Times survey exposed a
Rashomon-like gap between blacks' and whites' opinions regarding
workplace race relations: of the African-Americans polled, twenty-four
percent responded that relations were generally bad; of the Caucasians,
a mere six percent agreed. [FN230]
In the same vein, I daresay majority employees detect "special
treatment"
of minorities considerably more than do the latter.
But whatever the objective reality (if it could even be determined),
I return to the same conclusion: "naming,
blaming, and claiming" bias [FN231]
at every turn will not improve the workplace climate. Let me be
clear: I do not imply that anyone should turn a blind eye to discrimination.
Employers must take serious measures to prevent and cure it, and
workers must remain free to allege it. My argument is simply that
employees ought not be forced to claim discrimination--or nothing.
Apart from the deleterious effects already mentioned, such a
policy denies those workers faced with non-bias related issues
their best forum for a resolution. To quote a recent publication
of the Center for Public Resources Institute for Dispute Resolution
(CPR): "The fact that these [workplace] conflicts raise non-legal
problems makes them no less important to the employee, and thus
no less serious as management concerns." [FN232]
Focusing solely on discrimination can also pit protected groups
against each other. I have had a number of cases in which, for
example, African-American women contended that bosses treated Latinas
better, or African-American men complained that white females were
given promotions ahead of them. In one instance, a woman from India
alleged that the company's salary structure favored whites, Latinas,
and blacks. Instead of promoting divisive inter-group comparisons,
why not let employees aggrieved by a hostile environment, lack
of advancement, or low pay make these claims directly? If mediation
talks reveal that some workers are, in fact, being disadvantaged
on a class basis, management has the obligation to right the wrong
for all affected employees, not just the charging party. Thus,
opening the door to every type of workplace issue does not preclude
dealing forcefully with any bias actually encountered.
Attaching the label "discrimination" to all workplace
disagreements can, in addition, impede resolution. In a perhaps
ironic tribute to the success of civil rights laws in teaching
that prejudice is truly wrong, individual defendants are frequently
outraged at being accused of conduct so condemned by society. In
one case, supervisors named by the plaintiff in her Title VII complaint
were so incensed by the allegations of race-based harassment that
they categorically refused to attend talks with her. Since employees
usually enter mediation with strong negative feelings, which will
need to be alleviated or redirected in order to achieve settlement,
adding employer anger to the stew just exacerbates the problem.
The most difficult emotional dynamic, in my experience, arises
in mediations involving small companies, many of them family-owned.
Typically, the "boss" herself appears at the mediation
proceedings. This individual tends to regard the worker's complaint
as a personal affront. She frequently
knows the plaintiff well, views him as difficult, and believes
that she went beyond the call of duty to accommodate him before
finally firing him. His
"ingratitude" [FN233]
makes the defendant feel betrayed or, worse still, the victim of
an attempt to extort her hard-earned money. In contrast to Megamerger,
Inc., the small firm will not have deep pockets or copious paper
documentation supporting its position. [FN234]
The controversy may, thus, boil down to a credibility contest ("He
says, she says"), which often further embitters the parties
by eliciting mutual charges of lying.
In this context, injecting the issue of discrimination into an
already volatile dispute virtually ensures that resentment on both
sides will pose a formidable barrier to settlement. [FN235]
In a common reaction to the mediator's reminder of litigation costs,
the defendant will insist that while she is happy to pay her own
lawyer, she refuses to give anything to the plaintiff: "Millions
for defense, but not one cent for tribute!" [FN236]
Simply stated, bias allegations can turn an easily resolvable conflict
into an intractable quagmire.
Yet another downside to a system that rewards interpreting run-of-the-mill
workplace squabbles as instances of discrimination is its tendency
to lead workers to ignore ways in which their own performance or
conduct may have led to their predicament. As one company lawyer
harshly, but aptly, characterized a plaintiff: "She's a woman
with job problems who basically said: 'It must be because I'm Asian."'
Too ready recourse to allegations of race, religion, ethnicity,
disability, gender, or age discrimination compounds the human predilection
to blame others for personal failings. In the end, a complainant
who does so will probably both have lost her suit, if she went
to court, and more important, let slip a valuable opportunity to
learn from the experience, however bitter. An employee who fails
to face her performance issues is one who will likely neither improve
nor advance.
By the same token, a narrow focus on defending against a charge
of unlawful discrimination often diverts the employer from addressing
actions by its management that--although probably legal--were,
nevertheless, ill-advised. This blinkered approach not only impedes
constructive change but also may convince the plaintiff that the
defendant's sole concern is shielding itself from liability rather
than doing the right thing. I have found that
even in cases with little or no evidence of bias, more often than
not the employer contributed to the employee's problem or, at least,
did not make sufficient effort to resolve it.
Recall, for example, Jerry's debacle. By terminating him for
an admittedly misguided attempt to restore his friends' electricity
service--after sixteen otherwise-stainless years on the job--his
employer overreacted, as even its own lawyer conceded in caucus.
Another one of my mediations involved Dahlia, a nurse of Indian
national origin. Just after her return from a lengthy sick leave,
her hospital employer reassigned this elderly, nervous woman from
familiar duty on the pediatric ward to the emergency room. While
the hospital did nothing illegal, [FN237]
it surely acted unwisely: Dahlia, predictably, could not handle
this new, stressful job. Worse still, the employer refused, for
no good reason, to give her back her former job, at which she excelled.
She finally regained it, following many unhappy months, through
a settlement brokered in mediation.
Furthermore, in several cases I have handled, employers had fired
the employees on their first day back from a sickness or maternity
leave--thus, fairly inviting the latter to regard the dismissal
as based upon impermissible grounds, such as pregnancy or disability,
even if, in fact, it was not. In many instances, moreover, employers
have tolerated heavy-handed, inept, or downright nasty managers.
Finally, to the extent a complaint of discrimination amounts
to a conscious end-run around the strictures of at-will employment,
the plaintiff assumes the false position of making a claim that
she strongly suspects is specious. Joan, for example, stated during
the mediation that she "no longer" believed her former
supervisor had acted as he did because she was black. Later, however,
she frankly admitted to me in caucus that she had "had to" allege
prejudice in order to get her grievance heard. Another incident
involved a complainant who, also in caucus, revealed that she thought
the real obstacle to her advancement was not her sex but rather
the fact that she had served under eight managers in thirteen years.
These two cases are hardly unique.
I surmise that a fair number of employees--at least at the time
they file their charges--harbor doubts about the truth of their
complaint of discrimination. Whatever employers might think, moreover,
I suspect that few plaintiffs feel comfortable consciously making
dishonest claims. Regardless of their
beliefs at the outset, during the course of litigation the employees
usually succeed in convincing themselves of the veracity of their
account and suppressing alternative reasons for their problems,
such as personality conflicts, inadequate performance, or unsatisfactory
workplace conditions. [FN238]
Fooling oneself, though, is only marginally better than trying
to fool others. And whether or not the employee has actually acted
in bad faith, employers greet with great skepticism allegations,
not atypical, of three or more different types of statutory violation.
The most I have seen, numerically, is five; [FN239]
the most unlikely, substantively, was a claim based on the worker's
gender, Lutheran religion, and grandparents' Latvian national origin!
Scattershot charges ordinarily add up to less than the sum of their
parts. While some "intersectional" [FN240]
complaints make sense, [FN241]
the fact remains that many do not. If there is any credible portion,
like sex bias, in the case just mentioned, it gets diluted, lost
in the crowd, or tainted by association.
Some of the arguments same I propound have influenced others,
Professor Cynthia L. Estlund for one, to urge replacement of the
prevailing at-will environment with a regime barring dismissal
except for cause, absent a knowing
and voluntary waiver of the worker's rights. [FN242]
Such a change would drastically alter the present law, which ordinarily
lets the employer escape liability even after firing an employee
for an illegitimate reason--for instance, in order to permit the
boss to supplant him with a less qualified crony [FN243]--so
long as this reason does not amount to statutorily forbidden bias.
Such a reform would have the advantage of elevating the level
of candor in employment litigation. The employee would no longer
need to turn a forthright allegation of unfair discharge into a
marginal, and likely unprovable, charge of discriminatory firing.
Of course, nothing would prevent a complainant from mounting an
accusation of bias when he has the grounds to do so. This proposed
change might, in addition, alleviate tensions between members of
protected groups and their fellow workers, who--except through
unionization--have no recourse against unjustified termination.
[FN244]
Yet enacting "just cause" legislation would also entail
some disadvantages: for instance, making it much harder, as in
the case of unionized workplaces, to get rid of non-performers. [FN245]
We are, however, most unlikely to see the demise of at-will employment
any time soon--if, indeed, ever. [FN246] And
even if we were, this reform would not help workers to the extent
that they have grievances other than unfair termination. I will,
therefore, continue to discuss dispute resolution in the context
of the current laws governing employment, turning now to a detailed
examination of workplace-based mediation.
Back to beginning of Section
II
See also Introduction, Section
I, Section III, and Coda |
