More on Mediation

One of the strongest defenses an employer can use is to state and then prove that it undertook reasonable care to prevent and promptly correct harassment in the workplace. In order to do this an employer is required to establish, disseminate, and enforce an anti-harassment policy and complaint procedure and to take other reasonable steps to prevent and correct harassment.

As stated previously on this blog, simply having anti-harassment or other written policies is not good enough because there are no "safe harbors" for employers based on the written content of policies and procedures. Written policies only hold weight if the employer has implemented those policies effectively (e.g., by conducting a fair, thorough, and impartial investigation).

Just as written policies are not enough, an employer offering a complaining employee mediation/arbitration is also insufficient for an employer to prove that it exercised reasonable care. Let me write that again: A union grievance and arbitration system does not fulfill the obligation of exercising reasonable care.

Decision making under such a system addresses the collective interests of bargaining unit members, while decision making under an internal harassment complaint process should focus on the individual employee's rights under the employer's anti-harassment policy.

Again, an arbitration, mediation, or other alternative dispute resolution process does not fulfill the employer's duty of due care. The employer cannot dismiss its responsibility to investigate complaints of harassment and undertake corrective measures by providing employees with a dispute resolution process.

Source: http://www.eeoc.gov/policy/docs/harassment.html#VC