Vivian Berger Mediator

Home « Mediation, Employment, Civil Rights « Settling 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

  1. The Increasing Popularity of Mediation

  2. Why Early, Broad-Gauged Mediation Is Best

    1. Early Mediation

    2. 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