Tips on Mediation

EEOC describes their mediation process like this: Mediation is a fair and efficient process to help you resolve your employment disputes and reach an agreement. A neutral mediator assists you in reaching a voluntary, negotiated agreement. Choosing mediation to resolve employment discrimination disputes promotes a better work environment, reduces costs and works for the employer and the employee.

When you’re dealing with an agency, such as the EEOC, to even be offered mediation means that your case has been deemed to have merit and that your case warrants an investigation by the agency. So, you’ve gotten past the point where your employer can claim that your case is without merit. But, that won’t necessarily prevent them from claiming just that. Anyway, mediation is the first choice/desired action because it is less time consuming and avoids litigation.

A friend of mine recently went through mediation with a government agency. Those present at the mediation meeting included my friend, the government mediator, the Human Resources representative (representing her former employer), and the former employer’s attorney.

The reason I decided to share tips on mediation is because my friend felt strongly that the mediator was really pushing her to make decisions that weren’t necessarily in her best interest. For instance, when her former employer low-balled her with a financial settlement offer, the mediator made a big show out of telling her what a great offer was being made to her. Yet, the offer didn’t consider back pay or compensatory damages. My point isn’t to get into the specifics of her case, but to share some of our discussions about the mediation process. Here are some tips to keep in mind;

1) Remember that you aren’t required to reach an agreement at mediation. DON’T LET ANYONE PRESSURE YOU INTO AGREEING TO A RESOLUTION YOU TRULY DON’T ACCEPT OR THAT YOU THINK IS UNFAIR;

2) Don’t assume your employer’s representatives will tell the truth at the mediation meeting. INFORMATION SHARED AT MEDIATION IS DEEMED CONFIDENTIAL AND CAN’T BE USED AGAINST THE OPPOSING PARTY AT A LATER TIME. So, don’t be surprised if you hear new false allegations at a third-party mediation session. Your employer won’t be legally committed to these new fabricated allegations;

3) Remember that the mediator is not there to provide you with legal advice;

4) If possible, take a lawyer with you, since your employer may bring representation. You should also have a lawyer there to represent your best interests, as well as to provide clarification on the Federal statutes;

5) Don’t assume the mediator is fair and impartial—or even good at their job; (the same as Human Resources staff, who are often not fair and impartial and usually work to protect the employer!);

6) Don’t assume the mediator isn’t trying to quickly move cases off their desk and may be using their personal work-related stressors to influence your actions/judgment;

7) Don’t assume the mediator is tilted in favor of the “little guy,” rather than the employer;

8) If you are engaging in third-party mediation with an agency, such as the EEOC (rather than so-called workplace mediation), and you don’t like the agreement being offered, simply decline to resolve the issue through mediation. Declining the offer will result in a full government investigation of your employer; and

9) To hell with your employer! You should consider the impact the abuse has had on you—personally and professionally. That includes consideration of compensatory/punitive damages related to loss of pay (termination, wrongful denial of promotions and raises, salary cuts/demotions, etc.), loss of work/sustained unemployment, any health issues caused by the stresses at work, damage to your professional reputation within your field (future employment issues), etc.

IF ANYONE HAS GONE THROUGH THE MEDIATION PROCESS, PLEASE SHARE YOUR THOUGHTS. POST A COMMENT!

If you want to know more about the government perspective on mediation, the EEOC has a link to facts about government mediation at: http://www.eeoc.gov/mediate/facts.html and a Q&A on government mediation at: http://www.eeoc.gov/mediate/mediation_qa.html

Compensatory Remedies under Title VII

Many employees, who have filed a formal complaint/taken legal action alleging disparate treatment, often wonder about the remedies that are available to them under the law. While each case is different, there are general guidelines regarding financial liability (compensatory and punitive).

Definitions: Compensatory damages refer to damages that are recovered in payment for injury or economic loss. Punitive damages are damages that are added due to malicious or grossly negligent action. Punitive damages may be awarded in a lawsuit as a punishment and example to others for malicious, evil or particularly fraudulent acts. Injunctive relief refers to a court-ordered act or prohibition against an act or condition which has been requested, and sometimes granted, in a petition to the court for an injunction. Injunctive relief is not a judgment for money. It is sometimes part of a lawsuit for damages and/or contract performance. (Source: www.law.com)

In a disparate treatment case, the statute (Title VII) allows the following remedies (as applicable): injunctive relief, reinstatement, front pay (until or in lieu of reinstatement), back pay, attorney’s fees and costs, compensatory damages for any past or future out-of-pocket losses and any emotional harm, and punitive damages if the employer acted with malice or with reckless indifference to the individual’s federally protected rights. Punitive damages are unavailable against a federal, state, or local government employer.

The law places caps on the sum of compensatory and punitive damages for which an employer may be liable. The caps are based on the size of the employer’s workforce:

Employers with 15 - 100 employees: up to $50,000
Employers with 101 - 200 employees: up to $100,000
Employers with 201 - 500 employees: up to $200,000
Employers with 501 or more employees: up to $300,000

The caps apply to the sum of: punitive damages, and compensatory damages for emotional harm and future pecuniary losses. The caps do not apply to back pay and interest on back pay, front pay, or past pecuniary losses.

In a “mixed motives” case, in which an employment decision was motivated in part by race but the employer proves it also was motivated in part by a nondiscriminatory reason that would have resulted in the same decision by itself, Title VII still is violated but the remedies available are limited. The law allows declaratory relief, injunctive relief, and attorney’s fees and costs, but not reinstatement, hiring, back pay, or compensatory or punitive damages.

In an “after-acquired evidence” case, in which an employment decision was motivated by race but the employer proves that it subsequently discovered evidence of the applicant’s or employee’s wrongdoing that would have led to a similar decision on legitimate grounds even absent discrimination, Title VII still is violated. However, the remedies available are limited as follows: back pay is generally limited to the period from the date of the unlawful employment action to the date that the misconduct was discovered, compensatory damages are typically excluded for out-of-pocket losses incurred after the date that the evidence of wrongdoing was discovered, and reinstatement (or instatement) and front pay are not available. Other remedies, including compensatory damages for emotional harm and punitive damages, are not affected.

In a disparate impact case, in which a policy or practice has a significant disparate impact but cannot be justified by job-relatedness and business necessity, the employee is entitled to injunctive relief, reinstatement, front pay (until or in lieu of reinstatement), back pay, and attorney’s fees and costs. Compensatory damages and punitive damages are not available in disparate impact cases.

For further information on compensatory and punitive damages, see Enforcement Guidance: Compensatory and Punitive Damages Available Under §102 of the Civil Rights Act of 1991 (1992), available at http://www.eeoc.gov/policy/docs/damages.html.

For a fuller discussion of after-acquired evidence, see Enforcement Guidance on After-Acquired Evidence and McKennon v. Nashville Banner Publishing Co. (1995), available at http://www.eeoc.gov/policy/docs/mckennon.html.

Source: http://www.eeoc.gov/policy/docs/race-color.html

Harassment by a Co-worker or other "Non-Employer"

Some workplace harassment is not perpetrated by someone in a position of authority over an employee. Instead, the harassment may be carried out by an employee’s coworker(s) or some other "non-employer." When this type of harassment takes place, it is often common knowledge among staff. Although we’d like to think that someone with the audacity to harass or bully a coworker would do so out of sight of other employees, often other staff will witness or overhear the harassment. Let’s not forget, one of the best parts of harassment, from the perpetrator’s point of view, is the public humiliation (among staff) that the victim must suffer through. Embarrassing the victim is a huge payoff for people who engage in this behavior. It’s the humiliation that will help to isolate the target of the harassment and that may help persuade the victim to transfer to another department or resign from their job.

Just because an employee is not being harassed by someone in authority doesn’t mean that employers aren’t liable for any damage caused by the mistreatment. So, if you’re being harassed by someone senior to you (with no authority over you), someone who’s the same level as you or even by someone that is junior to you, your employer may still be liable for damage to your career, etc.

In the decision for Faragher, 118 S. Ct. at 2289 the Supreme Court said, “When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates that ‘the employer either provided no reasonable avenue for complaint [you didn’t have a way to complain of mistreatment] or knew of the harassment but did nothing about it.’”

On top of that, the EEOC states that an employer is liable for harassment by a co-worker or non-employer if management knew or should have known of the misconduct, unless the employer can show that it took immediate and appropriate corrective action.

So, if your coworker (or any workplace “non-employer”) is harassing you, your employer may be liable for punitive and/or other damages if they knew or should have known about your mistreatment because it was so prevalent and out-in-open in your workplace, but they did nothing about it! If your employer did take the right and immediate corrective actions against the person harassing you (e.g., transferring the perpetrator, firing the perpetrator, etc.), you may not be able to convince the court that your employer is liable for any damages.