Instructions Attached is an article from a scholarly journal or industry magazine about a specific arbitration case, involving a union or non-union, related to the topics introduced in Chapter 5 of yo

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Attached is an article from a scholarly journal or industry magazine about a specific arbitration case, involving a union or non-union, related to the topics introduced in Chapter 5 of your textbook. Some topics to consider, but not limited to, bargaining, negotiations, norms, and zone of possible agreement. The article must have been published in the past five years. The format for the article critique is as follows:

  • Article Title
  • Journal Name and Date
  • Key Points: (Five to seven key ideas from the article)
  • Summary: (Two to three paragraphs summarizing the article in your own words)
  • Personal Evaluation: (Two to three paragraphs highlighting the relevance of this article to your position or occupation, your agreement or disagreement with the author and/or findings, and any additional insights you may have.)

Note: The arbitration does not need to be one specifically related to your occupation. It can involve any job field

Your response must be a minimum of two pages. All sources used, including the textbook, must be referenced; paraphrased and quoted material must have accompanying citations in APA format.

Instructions Attached is an article from a scholarly journal or industry magazine about a specific arbitration case, involving a union or non-union, related to the topics introduced in Chapter 5 of yo
Psychology, Public Policy, and Law Copyright 1999 by the American Psychological Association, Inc. 1999, Vol. 5, No. 3, 693-729 1076-8971/99/S3.00 DOI: 10.1037//1076-8971.5.3.693 ARBITRATION, MEDIATION, AND SEXUAL HARASSMENT Susan A. FitzGibbon Saint Louis University School of Law The 1998 Supreme Court decisions in Faragher v. City of Boca Raton and Bur- lington Industries, Inc. v. Ellerth recognized an affirmative defense to hostile environment sexual harassment claims based in part on the existence of an effective policy prohibitiong sexual harassment in the workplace. The promulgation or refinement of policies prohibiting sexual harassment will likely lead to an increase in complaints of sexual harassment. This article concludes that mediation and arbitration procedures which follow recognized standards of due process are appro- priate means to resolve these claims and may substantially contribute to the Title VII goal of eradicating discrimination from the workplace. I. Introduction Congress passed Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination on the basis of race, color, national origin, religion, or sex.1 The primary goal of the legislation clearly was elimination of racial discrimination. Discrimination on the basis of sex was a last-minute addition, and the future effects of this provision were probably not imagined by many in 1964.2 In 1964 the position of women in the American family and society had not changed much from the 1950s or, really, from the 1930s. The key contribution of American women to the war effort and economy was conveniently forgotten.3 The societal ideal of the happy, nuclear, middle-class family cast women in the role of dutiful wives. Strict divorce laws made it extremely difficult to escape an unhappy marriage and, to a certain extent, Victorian morals still held sway. Susan A. FitzGibbon, Saint Louis University School of Law. I thank my colleague Josef Rohlik for his valuable comments and acknowledge excellent research assistance from Ken Graham and Antonia Maysey Ponder. The views expressed and any errors are my own. Correspondence concerning this article should be addressed to Susan A. FitzGibbon, Saint Louis University School of Law, 3700 Lindell Boulevard, St. Louis, Missouri 63108. ’42 U.S.C. § 2000e-2(a)(l) (1964). This article was submitted on July 23, 1998, before the U.S. Supreme Court decision in Wright v. Universal Maritime Serv. Corp., 119 S. Ct. 391 (1998) (no requirement to exhaust the arbitration procedure under a general arbitration clause of a collective bargaining agreement prior to filing claim of discrimination under the Americans with Disabilities Act because the collective bargaining agreement lacked a clear and unmistakable waiver of individual employees’ rights to bring a federal employment discrimination claim to a judicial forum, although the Court did not decide the enforceability of such a waiver) or the Ninth Circuit decision in Craft v. Campbell Soup Co., 161 F.3d 1199 (9th Cir. 1998) (holding that the Federal Arbitration Act does not apply to labor or employment contracts). 2M. Player, Employment Discrimination Law 201 (1988) (citing Vaas, Title VII: Legislative History, 1 BOSTON C. IND. & COMM. L. REV. 431, 441 (1966)). 3See, e.g., Carolyn C. Jones, Split Income and Separate Spheres: Tax Law and Gender Roles in the 1940s, 6 LAW & HIST. REV. 259, 262-265 (1988). 693 This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 694 FITZGIBBON The second half of the 1960s brought a sort of revolution in American society. Prompted by opposition to the Vietnam war, it was a revolt against authority, hierarchical structures, social norms, middle-class morality, and even dress codes. It was a bid for greater freedom on various fronts and, for women, this included independence and equal rights with men. Additional developments at this time contributed to greater freedom for women. Time-saving household appliances such as washers, dryers, dishwashers, and even second cars became widely available at least for members of the middle class. In Griswold v. Connecticut, the U.S. Supreme Court struck down prohibi- tions on use of contraceptives in 1965.4 In 1969 California enacted the first no-fault divorce law,5 and since the late 1960s courts have dealt with issues of workplace discrimination on the basis of sex. Workplace discrimination issues may be roughly divided into two categories. The first category involves discrimination in hiring, promotion, compensation, or discharge decisions on the basis of gender.6 The second category is sexual harassment, which was recognized in the mid-1970s7 and which may involve objectionable sexual attraction, attention, and interaction. Sexual harassment encompasses quid pro quo harassment, in which an employment decision is based on acceptance or rejection of sexual advances, and hostile environment harassment, which involves unwelcome conduct of such a severe and pervasive nature as to change the conditions of the victim’s employ- ment.8 The judicial legal regulation of sexual harassment claims is described in the next section. Although the legal prohibition of sexual harassment protects men and women from heterosexual harassment (and, now, from same-sex harassment9 ), the law developed primarily from situations of men harassing women, and most disputes present this situation. In this decade sexual harassment has become a matter of constant national attention. While in broad policy terms, the legal regulation of sexual harassment is designed to eradicate existing discrimination and to overcome the effects of past discrimination, it also is intended (Justice Scalia’s protests notwithstanding1 ) to impose a certain civility in the workplace and thereby to regulate workplace social interactions.11 In our current society, American workers put in long hours in a workplace 4381 U.S. 479 (1965). Obviously there have been other women’s issues including the legal- ization of abortion. Roe v. Wade, 410 U.S. 113 (1973). . California Family Law Act of 1969, ch. 1608, §§ 1-32, 1969 Cal. Stat. 3312 (1969). This statute served as the model for the nationwide change from fault to no-fault divorce. See, e.g., Herma Hill Kay, Equality and Difference: A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. REV. 1 (1987). Including pregnancy; see The Pregnancy Discrimination Act, Pub. L. No. 95-555, § 1, 1978 U.S.C.C.A.N. (92 Stat.) 2076, 2076 (codified as amended at 42 U.S.C. § 2000e-(k)).’ 7Barnes v. Train, 13 F.E.P. cases 123 (D.D.C. 1974), aff’dsubnom, Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977). 8Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). 9Oncale v. Sundowner Offshores Servs. Inc., 118 S. Ct. 998 (1998). wld. nFor example, Justice Rehnquist noted that Title VII protects employees from discriminatory insults. Meritor, 477 U.S. at 65. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 695 populated by men and women, and the workplace is a meeting place.12 Given human nature, an “off-duty” romantic relationship between two people employed in the same workplace is likely to manifest itself at work.13* Consequently, the workplace regulation of interaction between people has by necessity become regulation of their off-duty behavior. The annual meeting of the National Academy of Arbitrators in June 1998 presented a panel discussion entitled Romance in the Workplace: Nepotism, Fraternization, Off-duty Conduct and Sexual Harassment.14 This title of a pre- sentation to a group whose members are constantly called on to resolve workplace problems demonstrates the breadth of possible (and existing) regulation of con- duct. One panelist presented a hypothetical example to dramatize the situation: A business owner learns that two employees had a consensual sexual encounter at work and other employees became aware of it. The business owner calls her attorney for advice because she is concerned, not for the couple not working, but for the business owner’s potential liability in the event of complaints from other employees. Another panelist described a real antifraternization policy of a law firm, which obligated all firm members to report any fraternization to the man- aging partner. One wonders whether going to the movies counts as fraternization. The panelist acknowledged that this policy was ignored, but an ordinary employee in an ordinary business would risk adverse employment consequences to ignore such a workplace policy. The foregoing has particular significance in light of the June 26, 1998 decisions in Faragher v. City of Boca Raton15 and Burlington Industries, Inc. v. Ellerth,16 in which the U.S. Supreme Court advised employers that adoption of and compliance with sexual harassment policies may represent a defense against certain claims. According to some media commentators who represent employer interests, the general reaction of employers to these decisions was relief that the Court did not adopt a strict liability standard for these cases and a willingness to follow the U.S. Supreme Court’s advice17 to establish policies to avoid and correct sexual harassment. Experience suggests that employers are not adverse to regulating their em- ployees, especially where such regulation may limit liability. Additional regula- tion, particularly of off-duty conduct, increases the employer’s power over em- ployees. Among other things, the Paula Jones lawsuit, the Monica Lewinskysituation, and the necessity of a legal defense fund for the President to defend l2See, e.g., Susan Diesenhouse, Workers in Love, With the Boss’s Blessing, N.Y. TIMES, April 24, 1996 at Cl. 13’See, e.g., Philip Weiss, Don’t Even Think About It (The Cupid Cops Are Watching), N.Y. TIMES MAGAZINE, May 3, 1998, at 42. 14This panel discussion was presented on June 5, 1998, by Donald L. Sapir, Esq. of Sapir & Frumkin, Sharon P. Stiller of Underberg & Kessler, and Richard K. Zuckerman of Rains & Pogrebin. See National Academy of Arbitrators, Program Materials, 51st Annual Meeting, San Diego, California, June 4-6, 1998 (on file with author). 15118 S. Ct. 2275 (1998). 16118 S. Ct. 2257 (1998). 17Also see Effective Policies and Procedures More Crucial After Supreme Rulings, 67 U.S.L.W. 2019 (July 14, 1998) (noting that these rulings are viewed as a victory for employers). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 696 FITZGIBBON against a sexual harassment suit have prompted some members of the public to question the limits of regulation of sexual conduct. With respect to ordinary employment relationships two questions arise. First, how far should an employer be allowed to go in regulating the natural friendly and romantic affiliations of its workers? Second, are certain sexual harassment problems in employment simply em- ployment problems that can be quickly solved by corrective actions in the workplace through mediation and/or arbitration with a dose of common sense and without going to court? This article is concerned with this second question. Even the Equal Employment Opportunity Commission (EEOC) has con- cluded that “there may be a sizeable number of disputes … which may not involve discrimination issues at all. They reflect rather basic communication problems in the workplace.”18 Particularly in view of the events of 1998, it seems that the freedom that was the hallmark of the 1960s should not be completely supplanted by regulation in this area. The key issue is to strike a proper balance between the freedom of individuals in the workplace and the regulatory scope demanded by the public policy against discrimination on the basis of sex. It is important to recognize that protective laws inevitably also regulate the protected group as demonstrated, for example, by various laws earlier in this century passed to protect women in the workplace, which ultimately resulted in limiting women’s work opportunities.19 Alternative dispute resolution (ADR) refers to methods for resolving disputes outside of courts or nonjudicial dispute resolution. A wide variety of alternative dispute resolution methods exists including arbitration, mediation, negotiation, peer review, minitrial, summary jury trial, and early neutral evaluation. Some ADR processes are now suggested, offered, or mandated by courts. ADR pro- cesses that are not court-connected (and even some that are) are generally private proceedings in which the parties have more control over the process, the standard of the decision, and the remedies. ADR methods are generally viewed as provid- ing the opportunity for a faster and less expensive dispute resolution process, and many commentators believe that the parties may obtain better quality solutions and a better process in ADR methods than they would obtain in the courts.20 As noted, this article will consider whether the ADR processes of arbitration and mediation may play a valuable role in the resolution of workplace sexual harassment problems. Arbitration and mediation warrant this focus because they 18The EEOC ADR study is cited in UNITED STATES GEN’L ACC’TING OFFICE, GENERAL GOV- ERNMENT DIVISION, ALTERNATIVE DISPUTE RESOLUTION: EMPLOYERS EXPERIENCES WITH ADR IN THE WORKPLACE 14-15 (August 1997) (1997 WL 709361 F.D.C.H.). (hereinafter GAO/GGD). 19For example, in Muller v. Oregon, 208 U.S. 412 (1908), the U.S. Supreme Court allowed a law limiting women’s hours of work to stand, but in Lochner v. New York, 198 U.S. 45 (1905), it struck down similar legislation for men. In a 1944 labor arbitration case, Arbitrator Shulman awarded women pay equal to men for their work in a certain job classification despite a state law ban on women performing the heavy lifting occasionally required by the job. Ford Motor Co., 6 LAB. ARE. (BNA) 952 (1944) (Shulman, Arb.). 20See generally, JOHN S. MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION: THE ROLE OF LAWYERS 45-48 (2d ed. 1996). For a more complete description and analysis of the brief overview of ADR in this and the following two paragraphs see generally Id. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 697 are two of the most commonly used ADR processes in the employment context21 and, for approximately 60 years, parties have used mediation and arbitration to -resolve labor employment disputes outside of courts.22 The mediation and arbi- tration processes require the participation of a neutral third party to resolve the dispute. The mediator facilitates the negotiations of the parties and has no authority to impose a decision on them. By contrast, the parties agree to abide by the decision of the arbitrator, and the binding nature of arbitration, including extremely limited judicial review, has made arbitration a controversial form of ADR in these matters. The vast majority of cases filed in court have always settled before trial. As such negotiation may technically be the most popular ADR process. This article will not focus on negotiation, however, because negotiation represents the routine or usual method of dispute resolution between parties and because, unlike medi- ation and arbitration, it does not involve a neutral third party. Evaluating the use of the mediation and arbitration processes to resolve sexual harassment problems thus provides a richer field of inquiry. II. Defining Sexual Harassment: A Work in Progress Title VII of the Civil Rights Act of 1964 provides that “it shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”2 Scant evidence exists of congressional intent concerning the last-minute inclusion of “sex” as a protected category because it seems to have been added to defeat the entire measure.24 By the mid-1970s a few cases alleging sexual harassment were filed, but courts were at first skeptical of recognizing these claims.25 In 1980, the EEOC issued guidelines that specified that sexual harassment violated Title VII.26 The EEOC guidelines recognized and distinguished quid pro quo harassment (in which an employment benefit or detriment depends on acceptance or rejection of the harassing conduct) from “hostile environment” harassment (in which unwel- come conduct “unreasonably interferes] with an individual’s work performance or creat[es] an intimidating, hostile, or offensive working environment.”).27 The guidelines also provided that an employer was responsible for sexual harassment 21GAO/GGD, supra note 18. (GAO survey reports 80% of employers use mediation and 19% use arbitration to resolve disputes with nonunion workers.) 22For example, the War Labor Board was authorized to resolve labor disputes by mediation or arbitration. See LAURA J. COOPER & DENNIS R. NOLAN, LABOR ARBITRATION: A COURSEBOOK, 7-9 (1994). Section 203 (d) of the 1947 Taft-Hartley Act specifically encourages parties to a collective bargaining agreement to resolve their labor contract disputes by “[fjinal adjustment by a method agreed upon by the parties.” Labor Management Relations Act, 29 U.S.C. § 173 (1947). 2342 U.S.C. § 2000e-2(a)(l). 24See Player, supra note 2. 25See, e.g., Corne v. Bausch and Lomb, 390 F. Supp. 161 (D. Ariz. 1975), vacated by Corne v. Bausch and Lomb, Inc., 562 F.2d 55 (9th Cir. 1977); Tomkins v. Pub. Serv. Gas and Elect. Co., 422 F. Supp. 553 (D. N.J. 1976), rev’d 568 F.2d 1044 (3rd Cir. 1977). However, see supra note 7. 2629 C.F.R. § 1604.11 (1998). 27Id. § 1604.ll(a). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 698 FITZGIBBON by its agents or supervisors and for co-worker sexual harassment where the employer knew or should have known of the conduct, unless it could “show that it took immediate and appropriate corrective action.”28- In 1986 the U.S. Supreme Court first recognized that a claim of a sexually hostile environment is actionable under Title VII in Meritor Savings Bank v. Vinson.29 A unanimous decision declared that “Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult.”30 To state a cause of hostile environment sexual harassment, the conduct would have to be unwelcome and “sufficiently severe and pervasive to alter the conditions of the victim’s employment and create an abusive working environment”31 and be judged in light of the “totality of the circumstances.”32 Employer liability was not defined beyond reference to agency principles and recognition that employers are not automatically liable for a supervisor’s conduct and that lack of notice of harassment does not necessarily relieve employers of liability.33 It is noteworthy that the victim claiming hostile environment sexual harass- ment may be a third party (i.e., not the party to whom the sexual attention is directed).34 The possibility of an employer’s liability to a co-worker, who is not the direct or intended target of sexual attention or who is not a party to a 2BId. § 1604.1 l(c)(d). 29477 U.S. 57 (1986). In Meritor the plaintiff alleged that among other things her supervisor made repeated demands for sex to which she eventually acceded, publicly fondled her, and forcibly raped her. The supervisor denied all allegations. The plaintiff did not allege that employment benefits were conditioned on accepting his advances, and it was undisputed that her job advance- ment was based solely on merit. Id. at 60. 30Id. at 65. 3lld. at 67. 32Id. at 68. 33477 U.S. at 72. 34See 29 C.F.R. § 1604.11 (g). “Sexual favoritism in the workplace which adversely affects the employment opportunities of third parties may take the form of… ‘hostile work environment’ harassment.” See EEOC, Guidance on Employer Liability Under Title VII for Sexual Favoritism, II EEOC Compl. Man. (BNA) at N-915-048 (January 1990). However, the EEOC has concluded that Title VII does not prohibit isolated instances of favoritism toward a “paramour” or a spouse because, in such an instance, the disadvantaged third party does not suffer discrimination “because of sex.” Id. Most courts have also rejected claims of sexual discrimination based on a supervisor’s prefer- ential treatment of a “paramour” where the relationship rather than the gender of those involved was the basis of the employment decision. See, e.g., Becerra v. Dalton, 94 F.3d 145 (4th Cir. 1996), cert, denied, 117 S. Ct. 1987 (1997) (rejecting male’s discrimination claim based on promotion of woman who traded sexual favors for the promotion); DeCintio v. Westchester County Med. Ctr., 807 F.2d 304 (2d Cir. 1986), cert, denied, 484 U.S. 825 (1987) (rejecting male plaintiffs claims of discrim- ination based on selecting official’s promotion of the woman with whom he was having a sexual relationship); O’Patka v. Menasha Corp., 878 F. Supp. 1202 (E.D. Wis. 1995) (male plaintiff failed to state Title VII claim where his unfavorable treatment was due to supervisor’s romantic relation- ship with a female coworker and not to plaintiffs gender). But see King v. Palmer, 778 F.2d 878 (D.C. Cir. 1985) (recognizing a Title VII violation where instead of promoting the female plaintiff,supervisor promoted female employee with whom he was ‘having a sexual relationship) and Broderick v. Ruder, 685 F.Supp. 1269 (D. D.C. 1988) (plaintiff stated a prima facie case of hostile environment by showing supervisors gave preferential treatment to employees who submitted to sexual advances). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 699 consensual relationship, may prompt regulation of consensual conduct, for exam- ple, through policies concerning nepotism and fraternization. In 1993 the U.S. Supreme Court held in Harris v. Forklift Systems, Inc. that a hostile environment claim does not require a showing that the harassing conduct caused psychological injury or a nervous breakdown to trigger Title VII protec- tion.35 “[A]n environment which a reasonable person would find hostile or abusive” and which the victim subjectively perceived to be abusive violates Title VII.36 As Justice O’Connor noted, “[t]his is not, and by its nature cannot be, a mathematically precise test.”37 In cases involving a female complainant, there is a split in the lower courts as to whether situations should be judged from the perspective of a reasonable person or a reasonable victim.38 In the October 1997 term, the U.S. Supreme Court decided three Title VII sexual harassment cases.39 In the first, the Court ruled that Title VII also prohibits same-sex sexual harassment in Oncale v. Sundowner Offshore Services, Inc.40 Rejecting the contention that recognizing liability for same-sex harassment would turn Title VII into a general workplace civility code, Justice Scalia wrote: Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at “discriminatfion] … because of… sex.” We have never held that workplace harassment, even harassment between men and women, is auto- matically discrimination because of sex merely because the words used havesexual content or connotations. “The critical issue, Title VIFs text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”41 The U.S. Supreme Court addressed the extent of employer liability for the sexual harassment of supervisors in its two most recent decisions. Faragher v. City of Boca Raton*2 involved a lifeguard who alleged that her supervisors created a sexually hostile environment, who never reported the conduct to higher man- 35510 U.S. 17, 22 (1993). 36W. at 21. 37Id. at 22. 38Compare with Rabidue v. Osceola Refining Co., 805 F.2d 611, 620 (6th Cir. 1986), cert, denied, 481 U.S. 1041 (1987) (reasonable person standard) with Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (reasonable woman standard). It is noteworthy that social science studies have demonstrated that the type of standard applied did not produce significant outcome effects. Richard L. Wiener et al., Social Analytic Investigation of Hostile Work Environments: A Test of the Reasonable Woman Standard, 19 LAW & HUM. BEHAV. 263, 276 (1995). Also see Barbara A. Gutek & Maureen O’Connor, The Empirical Basis for the Reasonable Woman Standard, J. Soc. ISSUES, Spring 1995, at 151, 162. 39The U.S. Supreme Court also ruled on the liability of a school district in a case of sexual harassment of a student by a teacher; see Gebser v. Lago Vista Indep. School Dist, 118 S. Ct. 1989 (1998). Because the Lago Vista decision involved an implied right of action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (1972), it is not addressed in this article, which focuses on sexual harassment in employment under Title VII of the Civil Rights Act of 1964. For additional discussion of these recent U.S. Supreme Court rulings, see Richard L. Wiener & Linda E. Hurt, An Interdisciplinary Approach to Understanding Social Sexual Conduct at Work, 5 PSYCHOL. PUB. POL’Y & L. 556-595. 40118 S. Ct. 998 (1998). 41M at 1002. ^Faragher, 118 S. Ct. 2275 (1998). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 700 FITZGIBBON agement, and who suffered no tangible job detriment.43 Although the city had a sexual harassment policy, the supervisors and lifeguards were not aware of it.44 In Burlington Industries, Inc. v. Ellerth, Ellerth claimed tffat her supervisor, once removed, constantly sexually harassed her with offensive remarks and gestures, three of which suggested a connection to her success with the company.4 Despite this she was promoted and suffered no job detriment, and she never informed anyone in authority of the conduct although she was aware of the company’s anti-discrimination policy.46 In deciding these cases, the U.S. Supreme Court reiterated that the “substantive contours” of the prohibited hostile environment claim were proof of both an objectively and subjectively offensive environment and extreme conduct which amounts to a discriminatory change in terms and conditions of employment, based on a review of all the circumstances.47 After a showing of such discrimination, employers are routinely held liable where the employer or high officers of the employer actually knew of but failed to stop harassing conduct, or where the harasser clearly was a proxy for the employer’s organization (such as the company president), or where the victim suffered “discriminatory employment actions with tangible results.”48 Although the Court sanctioned use of a negligence standard to assess employer liability for co-worker harassment,49 it concluded that supervisory harassment that does not result in tangible employment action calls for a different standard. The supervisory rela- tionship always assists the harassing supervisor, for example, because an em- ployee cannot deal with a supervisor’s conduct as she could deal with that of a co-worker50 and/or because the harassing conduct of a supervisor takes on “a particular threatening character.”51 Adopting the same holding in Faragher and Burlington, the Court ruled that employers are vicariously liable to employee victims for actionable hostile envi- ronments created by supervisors with direct or successively higher authority and that if no tangible employment action occurred, the burden shifts to the employer to prove that the employer “exercised reasonable care to prevent and correct” harassment (e.g., by the existence of an antiharassment policy with a complaint procedure) and that the employee victim unreasonably failed to “take advantage of the corrective opportunities provided by the employer or to avoid harm otherwise.”52 43Id. “id. 45Burlington, 118 S. Ct. 2257 (1998). 46Id. 47Faragher, 118 S. Ct. at 2283 (1998). 48Id. 49 T Id. The EEOC Guidelines governing sexual harassment claims provide that an employer is responsible for sexually harassing conduct of co-workers in the workplace if the employer “knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.” 29 CFR § 1604.1 l(c) (1997). s°Faragher, 118 S. Ct. at 2283 (1998). 5lBurlington, 118 S. Ct. at 2263 (1998). 52″In order to accommodate the principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII’s equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 701 In both cases Justice Thomas wrote a dissenting opinion, in which Justice Scalia concurred, criticizing the Court for creating different standards for em- ployer liability in cases of alleged racial and sexual harassment and asserting that the proper standard would hold an employer liable only on proof of employer negligence in permitting the conduct to occur.53 Justice Thomas predicted that because plaintiffs need only to fulfill a “duty of reasonable care to avoid harm,” employer liability may well become the rule and that The Court’s holding does guarantee one result: There will be more and more litigation to clarify applicable legal rules in an area in which both practitioners and the courts have long been begging for guidance. It thus truly boggles the mind that the Court can claim that its holding will effect “Congress’ intention to promote conciliation rather than litigation in the Title VII context.”54 As the heading of this section suggests, even with three new pronouncements by the U.S. Supreme Court on the subject this year, sexual harassment is not clearly defined. We have the substantive “contours” of what constitutes actionable sexual harassment. On this issue alone facts are likely to be strongly disputed, and cases will turn on determinations of credibility55 as well as on the assessment of the severity or pervasiveness of the conduct. While Justice Thomas’s character- ization of the new standard for employer liability as “Delphic”56 may be too strong, what constitutes reasonable preventive or corrective action or an unrea- sonable failure to take advantage of an employer’s complaint procedure or to avoid harm certainly raises as many questions as it might answer. Undoubtedly, these standards will generate numerous disputes and more litigation.57 However, and in Burlington Industries, Inc. v. Ellerth, ante, p. , also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiha- rassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” (Faragher at 2293; also see Burlington at 2269) 53Burlington at 2271. Justice Thomas also cited and essentially applied this analysis in the Faragher case. 54Id. at 2274-75. 5SSee, e.g., Barbara J. Gazeley, Venus, Mars and the Law: On Mediation of Sexual Harassment Cases, 33 WILLAMETTE L. REV. 605, 623 (1997). 56Burlington at 2273. 57See, e.g., comments on these cases of Susan Meisinger, senior vice-president for the Society for Human Resource Management: “These two decisions are the culmination of a public focus on This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 702 FITZGIBBON resolution of these issues is likely to turn on the facts of the individual case and SS is not likely to raise novel legal issues. It is noteworthy that the Faragher majority opinion reiterates that the primary goal of Title VII is to avoid the harm of discrimination and that the Burlington majority opinion cites the congressional intent to promote conciliation, not liti- gation, of workplace discrimination matters.59 It is submitted that these cases add a novel element to sexual harassment cases. Traditionally, as in most areas of law, the existence of liability particularly when accompanied by a large award of damages is considered to have a conduct regulating effect (i.e., it prompts the defendant and those who are similarly situated to take corrective action).60 The Court’s reference to impliedly reasonable anti-discrimination policies adds the element of examination of these policies, where they exist, and of examination of the conduct of both the employers and employees under such policies according to a standard of reasonableness in the particular workplace context. III. Law Governing Mediation and Arbitration A. Introduction This section will present a brief overview of the legal regulation of the mediation and arbitration processes. The section that follows (Mediation) is short because mediation essentially is a facilitated negotiation process which, if suc- cessful, results in a contract which is subject to judicial regulation and enforce- ment as a contract. By contrast arbitration is subject to a far more complex legal regime, which has been evolving at a rapid pace in the last 30 years. The arbitration process, legal regulation of it, and the legal expansion of claims that may be resolved in arbitration are described in the remaining parts of this section. The final part of this section focuses on the recent use of mediation and arbitration to resolve sexual harassment claims and explains that since 1991 the public has become acutely aware that sexual harassment is illegal and actionable, that amendments to Title VII of the Civil Rights Act providing for jury trials and damages have made pursuit of employment discrimination claims more attractive to complainants and riskier for employers, and that the U.S. Supreme Court’s recognition that statutory employment discrimination claims may be finally resolved in arbitration has made arbitration a viable alternative for out of court resolution for these claims. This part also explores more recent developments concerning arbitration of statutory the subject, and employers have to anticipate the cumulative impact of this will be more litigation.” Steven Greenhouse, Companies Set to Get Tougher on Harassment, N.Y. TIMES, June 28, 1998 at ‘A 12, col. 6. 58C/ Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1486 (D.C. Cir. 1997), citing Martin H. Malin, Arbitrating Statutory Employment Claims in the Aftermath ofGilmer, 40 ST. Louis U.L.J. 77, 104 (1996) (“Most employment disputes are fact-based and’not likely to raise the kind of legal issues that would call for significant judicial review.”). 59Faragher at 2292; Burlington at 2270. ^See, e.g., Josef Rohlik, Symposium: Arbitration as a Model for Resolution of Health Care Disputes Between Health Care Professionals and Health Care Organizations, 41 ST. Louis U.L.J. 1005, 1007 (1997). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 703 employment claims, including the May 1998 Ninth Circuit decision refusing to enforce predispute agreements to arbitrate Title VII employment discrimination claims.” B. Mediation Mediation is a flexible process in which the parties attempt to resolve conflicts and reach an agreement with the assistance of a neutral third party.62 Successful mediation results in a contract between the parties to the dispute, and law regulates the validity and enforceability of a contract reached in a successful mediation.63 Today it is fair to say that mediation of disputes is promoted as a national policy as evidenced, for example, by statutory requirements for its use and by the adoption of a mediation procedure by many federal and state courts.64 In addition to encouraging or even mandating mediation, numerous state and federal statutes also regulate various issues in mediation including confidentiality of the process, mediator qualifications, and mediator liability.65 C. Labor Arbitration Arbitration is an extrajudicial adversarial proceeding that results in a decision of a neutral third party based on the rights and obligations of the parties. In the United States there are two categories of arbitration which are distinguished by their different governing statutes: labor arbitration between unions and employers, and commercial arbitration between other parties who agree to resolution of a dispute through arbitration (e.g., an individual employee and his or her employer). The Labor Management Relations Act and court made law governing labor arbitration.66 The parties to the labor arbitration agreement are employers and unions, and the individual grievant is not a party, although he or she is clearly a party in interest. In 1974 in Alexander v. Gardner-Denver,67 the U.S. Supreme Court ruled than an individual employee retained the right to vindicate his Title VII cause of 61Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998). 62The mediation process may also involve a panel of mediators. 63See, e.g., JOHN MURRAY ET AL., PROCESSES OF DISPUTE RESOLUTION, THE ROLE OF LAWYERS, 420-423 (2d ed. 1996). ^See, e.g., David Rauma & Donna Stienstra, FEDERAL JUDICIAL CENTER, THE CIVIL JUSTICE REFORM ACT EXPENSE AND DELAY REDUCTION PLANS: A SOURCEBOOK, Table 13 (1995). Table 13 demonstrates that a majority of the Federal District courts implemented some form of court connected mediation for civil cases. Id. at 285-298. For a recent collection of numerous state mediation laws, see Nancy H. Rogers & Craig A. McEwen, MEDIATION: LAW, POLICY & PRACTICE, app. B (2d ed. Supp. 1997). Also see, e.g., the 1996 Administrative Dispute Resolution Act, 5 U.S.C. § 571 et seq., which permanently authorized the use of ADR including mediation by federal agencies. 65Nancy H. Rogers & Craig A. McEwen, MEDIATION: LAW, POLICY & PRACTICE, § 1:03 app. B (2d ed. Supp. 1997). 66Labor Management Relations Act, 29 U.S.C. §§ 147-197 (1947). Also see, e.g., the Steel- workers Trilogy: United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). 67Alexander v. Gardner-Denver, 415 U.S. 36 (1974). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 704 FITZGIBBON action in court notwithstanding a contrary labor arbitration award. Gardner- Denver has been construed as protecting the individual’s right to bring a statutory claim to court despite the arbitration clause of a collective bargaining agree- ment.68 As is discussed later in this section, this decision has been influential in the current debate of whether statutory rights may be subject to final and binding arbitration. Aside from this limited exception for an employee to press an individual claim in court,69 national policy favors resolution of disputes under collective bargaining agreements by final and binding arbitration.70 Some of the reasons supporting this national policy are the recognition that employment practices develop in a particular place of employment (i.e., the “law of the shop”) which inform the arbitral decision, that the parties have an ongoing relationship, that the arbitration clause is the quid pro quo for the strike and, as such, that arbitration is an integral part of the collective bargaining relationship.71 Labor arbitration awards are selectively reported by private publishing com- panies (e.g., Bureau of National Affairs, Commerce Clearing House). For at least 60 years, labor arbitrators have developed substantive rules concerning, for example, just cause for discharge, procedural and substantive due process, and the burden of proof.72 These rules are not binding, but they are widely followed. In sum, arbitration is considered to be particularly well suited to resolve employment disputes under a collective bargaining agreement. D. Commercial Arbitration and Nonunion Employees Commercial arbitration clauses, on the other hand, are contractual terms which provide for arbitration as the exclusive forum for the resolution of future disputes which are enforced under the Federal Arbitration Act and state arbitration statutes and judge-made laws.73 These statutes ensure the finality of awards by providing very limited grounds for judicial vacation or modification.74 Prior to World War II, most commercial arbitrations involved merchants and members of trade associations, and arbitration was a standard practice in various commercial fields. Since World War II, however, arbitration clauses have spread to cases that are not in the strict sense commercial; for example, arbitration 6sSee, e.g., Pryner v. Tractor Supply Co., 109 F.3d 354 (7th Cir.), cert, denied 118 S. Ct. 295 (1997) (recognizing union employees’ right to sue for statutory violations despite arbitration clause in collective bargaining agreement). 69The U.S. Supreme Court also relied on Alexander in denying the preclusive effect of a labor arbitration award as to an individual employee’s right to bring a Fair Labor Standards Act claim (Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981)) and as to a civil rights claim under 42 U.S.C. § 1983 (McDonald v. City of West Branch, 466 U.S. 284 (1984)). 70See, e.g., United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29 (1987). 71See Steelworkers Trilogy, supra note 66, and Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957) (recognizing the arbitration agreement as the quid pro quo for an agreement not to strike). 72See, e.g., ELKOURI & ELKOURI, How ARBITRATION WORKS 884-920 (Marlin M. Volz & Edward P. Goggin, eds., 5th ed. 1997) (hereinafter ELKOURI). 73Federal Arbitration Act, 9 U.S.C. § 1 et seq. (1947); see, e.g., Mo. Rev. Stat. § 435.012 et seq.; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985). 749 U.S.C. §§ 10-11. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 705 clauses may appear in separation agreements of divorcing parties, contracts in the health care and construction industries, consumer contracts, securities and indi- vidual employment contracts. Parties to any contract may prefer private dispute resolution to resolution in court for a variety of reasons.75 U.S. court dockets are overcrowded. Even expeditious judicial processing of cases may take years to produce a final resolution when appeals are taken. The funds necessary to pursue a case— attorney fees, fees of expert witnesses, and investigators—are very high and are likely to be beyond the means of an individual employee or even of a small businessperson. As a practical matter, an attorney cannot afford to take a case on a contingency fee basis or otherwise invest time and money in a complex case, if the case recovery is limited to five rather than at least six figures. All of these considerations are not likely to change in the foreseeable future. Narrowing the focus to the extrajudicial resolution of individual employment claims, it must first be noted that especially since the passage of the Civil Rights Act of 1964, “at will” employees have gained a host of statutory rights against employers in cases of discharge, discrimination, demotion, discipline, and so on.76 The value of preserving a job that pays reasonably well has been recognized and led to some efforts to protect employees from discharge at the whim of employers, for example, in the Model Employment Termination Act.77 As previously noted, for employees who do not make large salaries and who have not been victims of particularly egregious conduct which would warrant a large damage award, courts are effectively inaccessible because of the time and costs involved. In addition, judicial resolution of employment disputes usually does not result in reinstatement or in the employee maintaining his or her job. More often successful plaintiffs receive a monetary award in a decision that is removed in time and effect from the workplace problem. Today in employment discrimination cases, employer-defendants defend on grounds (e.g., that, for example, the employee committed an infraction or that economic circumstances dictated the discharge.78 As such, these individual em- ployment disputes resemble the sort of disputes that for decades have successfully been resolved in labor arbitration. There also is no evidence that arbitrators generally have been unable either to apply law or to render socially acceptable 75See, e.g., Rohlik, supra note 60 at 1006-1007. 76See, e.g., Employee Polygraph Protection Act of 1988, 29 U.S.C. § 2001 (1988); The Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (1990); and The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (1993). In addition, employees have gained from judicial limitations on the right to discharge at will based on a tort theory prohibiting discharge which violates public policy and on the contractual theories that recognize employer policies and manuals as contracts limiting the right to discharge or which judge the discharge under an implied good faith and fair dealing covenant. See, e.g., Theodore J. St. Antoine, A Seed Germinates: Unjust Discharge Reform Heads Toward Full Flower, 67 NEB. L. REV. 56 (1988). 77MooEL EMPLOYMENT TERMINATION ACT (META) (1991). 78After a plaintiff states a prima facie case of discrimination, the employer has the burden of going forward, i.e., of adducing evidence of a legitimate, nondiscriminatory reason for the employ- ment action. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 706 FITZGIBBON decisions79 and in fact some arbitral decisions in discrimination cases preceded court decisions.80 As previously mentioned, labor arbitration decisions are selectively reported, and they are the only arbitration decisions that have been regularly reported for decades. It is noteworthy that sexual harassment has been the issue in a number of reported labor arbitration awards.81 Given the collective bargaining context, almost all of these cases deal with disciplinary measures taken against the • perpetrator of sexual harassment. Thus, for decades arbitrators have been deciding whether the conduct in question constituted sexual harassment and then assessing the degree of the gravity of the objectionable conduct.82 Arbitrators’ decisions on the penalty (from reprimand to discharge) have involved balancing the degree of gravity of the conduct and the usual mitigating circumstances, such as the length of service and disciplinary record of the offender.83 As Vern E. Hauck has noted: One practical implication of the cases reported in this book is that human resource structures, outside the courts and regulatory boards, appear successful in dealing with sexual harassment. It is very clear, however, that proscribing sexual harass- ment i’s well served by collective bargaining. In short, the collective bargaining model virtually forces the adoption and enforcement of formal policy that is one step closer to limiting the employer’s legal liability and avoiding fraudulent sexual harassment claims. Analysis of the extensive number of court cases and published arbitration awards cited in this book indicates that many unionized employers have been invoking the Supreme Court’s standards for some time. The awards confirm that many organized employers are raising the subject of eliminating sexual harassment affirmatively, training and/or retraining co-workers and supervisors, placing employees on explicit notice of policies and procedures, and verifying that employees are aware of and complying with the company policy and procedure against sexual harassment. In reality, the collective bargaining model encourages aggressive anti-sexual harassment policy because arbitrators have consistently 79Judge Edwards noted that while arbitral competence to handle statutory claims has been questioned, for example, in the Alexander v. Gardner-Denver decision, the U.S. Supreme Court’s endorsement of the arbitration of statutory claims, from Mitsubishi through Gilmer, demonstrates confidence in the ability of arbitrators to handle these claims properly. Cole, 105 F.3d 1477-1478. Some studies have also demonstrated that labor arbitrators considered and properly applied anti- discrimination law and regulations. See FitzGibbon, infra note 203 at 230 and n.64 (citing studies). 80In the 1960s labor arbitrators refused to uphold the discharge of female flight attendants simply because they were married, while courts were upholding these policies. See Southern Airways, 47 Lab. Arb. (BNA) 1135 (1966) (Wallen, Arb.); American Airlines, 48 Lab. Arb. (BNA) 705 (1967) (Seitz, Arb.); Allegheny Airlines, Inc., 48 Lab. Arb. (BNA) 734 (1967) (Kelliher, Arb.). In 1974 in a hostile environment sexual harassment situation, Arbitrator Larkin upheld the discharge of male employee who made advances 2 days in a row toward a female co-worker in an elevator and who had once before engaged in such behavior, despite the grievant’s 27-year tenure with the company. CPC Int’l, 62 Lab. Arb. 1272 (1974) (Larkin, Arb.). Also see Hughes Aircraft Co., 102 Lab. Arb. (BNA) 353 (1993) (Bickner, Arb.) (upholding discharge of grievant for engaging in same sex harassment). B1See Vern E. Hauck (ed), Arbitrating Sexual Harassment Cases (1995) (collecting awards). Hauck noted that “over 125 published arbitration awards have considered sexual harassment since 1945, and few have been vacated.” Id. at 1-2. 82W. 83Id. at 1-5 through 1-12. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 707 ruled against employers who fail to achieve the Vinson [Meritor] mandate of the U.S. Supreme Court.84 There are, of course, objectionable arbitration awards, and a few have been so viewed in the discrimination area.85 The willingness of arbitrators to assess large damages against employers is, as yet, untested (in part because these awards, if any, are not reported).86 Nevertheless none of this suggests that ADR should be rejected as a means of resolving routine workplace problems that are often unlikely to find their way into court. Arbitration of statutory claims, particularly where the agreement to arbitrate is a condition of employment—so-called “compulsory” or mandatory arbitra- tion—may easily be criticized as an unsuitable vehicle to vindicate public policy. Arbitrators are private decision makers who do not represent governmental authority. They need not be prominent lawyers or lawyers at all. The arbitration decision is final and not subject to appeal for errors in fact and law, except in cases where the award violates public policy.87 Nevertheless, the U.S. Supreme Court has significantly expanded arbitrability in the “commercial” arbitration field88 and has held that even compulsory arbi- tration clauses are enforceable in cases involving the statutory rights of employ- ees, as the next section explains. E. Use of Mediation and Arbitration to Resolve Sexual Harassment Claims Since 1991 Three events in 1991 further set the stage for evaluation of whether resolution of sexual harassment claims in arbitration and in mediation may provide a benefit to employees and employers and also serve the goals of Title VII. During the widely televised Senate hearings on the confirmation of Clarence Thomas to a seat on the U.S. Supreme Court, Anita Hill essentially alleged that while he served as the chairman of the EEOC and as her supervisor, Thomas harassed Hill by creating a sexually hostile environment. Justice Thomas flatly denied the charge. As the viewing public was transfixed for days by the spectacle that presented a classic “he said-she said” credibility question, public awareness Mld. at 1-22. ssSee, e.g., Stroemann Bakeries v. Teamsters Local 776, 969 F.2d 1436 (3d Cir.), cert, denied 506 U.S. 1022 (1992) (vacating on public policy grounds an award that reinstated a driver discharged for apparently assaulting a female customer by grabbing her breast, pushing himself against her, and making offensive remarks); Newsday v. CWA Local 915 (Long Island), 915 F.2d 840 (2d Cir. 1990), cert, denied, 499 U.S. 922 (1991) (vacating on grounds of public policy an award that reinstated a male employee who had been terminated for sexual harassing female co-workers). 86One unofficial survey of 337 National Association of Securities Dealers and NYSE awards in employment cases reported from January 1989 through February 1997 found six awards of over $1,000,000 to employees but found generally that the awards tended to be lower than damages awarded in jury trials and often were less than six figures. Stuart H. Bompey et al., The Attack on Arbitration and Mediation of Employment Disputes, 13 LAB. LAW. 21, 65-66 (Summer 1997). S7See, e.g., United Paperworkers Int’l v. Misco, Inc., 484 U.S. 29 (1987). ’88See, e.g., Mitsubishi, 473 U.S. 614 (1985) (Sherman Act); Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220 (1987) (Securities Exchange Act and Racketeer Influenced and Corrupt Organizations Act); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989) (Securities Act of 1933) (hereinafter Mitsubishi). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 708 FITZGIBBON of workplace sexual harassment increased exponentially. In the wake of the hearings, individuals flooded EEOC offices with sexual harassment complaints.89 After these hearings and in view of subsequent notorious- examples in business, such as the Mitsubishi Motors Manufacturing agreement to pay $34 million to settle a class action suit,90 the woman who won a $50 million sexual harassment jury verdict against Walmart,91 the Navy Tailhook scandal,92 and the Paula Jones case, the public is well aware of the right to sue for sexual harassment. A second significant event of 1991 was congressional passage of amendments to Title VII in November. The Civil Rights Act of 1991 provided Title VII claimants for the first time a right to jury trial and a right to limited damages including punitive damages and specifically provided “[w]here appropriate and to the extent authorized by law, the use of alternative dispute resolution, including . . . mediation … and arbitration, is encouraged to resolve disputes arising under [Title VII and the ADEA].”93 Providing a right to trial by jury and a right to recover compensatory and punitive damages effectively raised the stakes in these cases: on one hand, an aggrieved employee and a prospective attorney for the plaintiff have a stronger incentive to press a Title VII claim, while on the other hand, employers face a much higher risk in defending against such claims. At the same time Congress recognized the problems of overcrowded court dockets and the growing popularity of out of court methods to resolve disputes and encouraged alternative dispute resolution for these claims. The third event in 1991 that significantly affected the resolution of sexual harassment claims through ADR methods was the U.S. Supreme Court decision that an agreement to arbitrate employment disputes bound an employee to arbitrate his statutory employment claim. Following the analysis of a line of decisions enforcing agreements to arbitrate a variety of statutory claims,94 the U.S. Supreme Court ruled in Gilmer v. Interstate/Johnson Lane Corp.95 that an Age Discrimination in Employment Act (ADEA)96 claim could be subjected to compulsory arbitration. Interstate/Johnson (Interstate) hired Gilmer as a manager of financial services and required him to register with the New York Stock Exchange (NYSE), and the Uniform Application for Securities Industry Regis- 89Jane Gross, Suffering in Silence No More: Fighting Sexual Harassment, N.Y. TIMES, July 13, 1992, at Al. 90’See Sexual Harassment: Mitsubishi’s Sexual Harassment Woes End as Judge Approves $34 Million Settlement, Daily Lab. Rep. (BNA), June 25, 1998, available in LEXIS, 1998 DLR 122 d21. 91Kimzey v. Wal-Mart Stores, Inc., 907 F.Supp. 1309 (W.D. Mo. 1995), aff’d in part and rev’d in part, 107 F.3d 568 (8th Cir. 1997) (on appeal, the punitive damages award was reduced to $350,000). 92See, e.g., Gross, supra note 89; Eric Schmitt, Navy Chief Seeks Anti-harassment Law, N.Y. TIMES, July 3, 1992, at A10. 93Pub. L. No. 102-166 § 118 (reprinted in notes to 42 U.S.C. § 1981). Congress also specifically limited the amount of damages recoverable according to the size of the employer. The damage caps are as follows: $50,000 for an employer with 100 or fewer employees; $100,000 for an employer with 101-200 employees; $200,000 for an employer with 201-500 employees; and $300,000 for employers with more than 500 employees. 42 U.S.C. 1981a(b)(3). 9*See Mitsubishi, supra note 88. 95500 U.S. 20 (1991). It is noteworthy that the U.S. Supreme Court decided Gilmer in May and that Congress passed the Civil Rights Act of 1991 in November. 9681 STAT. 602 (1967), amended by 29 U.S.C. § 621 et. seq. (1967). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 709 (ration or Transfer form, commonly known as a Form U-4, contained a clause agreeing to arbitrate employment disputes with Interstate under the NYSE rules.97 After Interstate discharged Gilmer at age 62, Gilmer sued for-age discrimination, and Interstate sought to compel arbitration98 which the district court denied. The Court of Appeals reversed. The Federal Arbitration Act (FAA)99 makes arbitration agreements specifi- cally enforceable if they are “written provision[s] in any maritime transaction or a contract evidencing a transaction involving commerce.”100 Thus, the FAA applied to the Gilmer arbitration agreement in the NYSE registration101 —a commercial contract. Noting that Congress passed the FAA to end the historic judicial hostility to arbitration agreements and to ensure enforcement of arbitra- tion agreements on the same basis as other contracts and that the FAA evinced a “liberal federal policy favoring arbitration agreements,”102 the U.S. Supreme Court reiterated that “by agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.”103 Analyzing Gilmer’s claims, the Court concluded that neither the text nor the legislative history of the ADEA precluded the resolution of claims in arbitration, that the remedial and deterrent functions of the ADEA were served “so long as the prospective litigant may vindicate [his or her] statutory cause of action in the arbitral forum,” and that arbitration would not undercut the EEOC’s role in enforcing the ADEA.104 The Court rejected general attacks on the impartiality or competence of arbitrators and also concluded that the NYSE arbitration rules provided for sufficient relief, discovery, and written opinions.105 The arbitration clause in Gilmer was a predispute compulsory or mandatory arbitration clause, that is, the employee had no choice but to agree to arbitrate future claims in order to obtain (or retain) his job. Even so, the U.S. Supreme Court enforced this agreement to arbitrate and expressly rejected generalized attacks on arbitration on grounds of inequality of bargaining power. 97500 U.S. at 24. Concluding that this was not an employment agreement, the U.S. Supreme Court did not address the Federal Arbitration Act’s § 1 exclusion of agreements of “workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Id. at 25, n.2. 98W. at 24. “9 U.S.C. § 1 et seq. 100«. at § 2. 101As previously noted, finding that the arbitration clause was part of a securities registration application rather than part of an employment agreement, the U.S. Supreme Court avoided deciding whether the FAA applies to employment disputes. Gilmer, 500 U.S. at 25 n.2 Cf. 9 U.S.C. § 1. See infra text accompanying notes 112-117. 102500 U.S. at 25 (citing Moses Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983)). 103 Id. at 26. 104/rf. at 26-28. losld. at 33. !06W. The Court concluded that this issue should be resolved on a case by case basis: “Mere inequality of bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context… Of course, courts should remain attuned to well supported claims that the agree- This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 710 FITZGIBBON As previously noted, in 1974 the U.S. Supreme Court ruled in Alexander v. Gardner-Denver107 that a union employee could pursue a statutory employment discrimination claim in court, despite a contrary labor arbitration award under a collective bargaining agreement. In Gilmer the Court distinguished the Gardner- Denver rule (that an adverse arbitration award under a collective bargaining agreement did not foreclose the employee’s right to bring a Title VII claim) on the grounds that Gardner-Denver was not decided under the FAA, that it raised the different issue of arbitration precluding judicial resolution of a statutory claim, that in Gardner-Denver the union and not the employee agreed to arbitrate raising concern for a disparity of interests, and that the labor arbitrator lacked authority to decide the statutory claim.108 Subsequently the circuit courts almost uniformly extended the Gilmer anal- ysis to Title VII claims109 as well as to the Americans with Disabilities Act (ADA)110 and other statutory employment claims.111 The Gilmer Court treated Gilmer’s NYSE registration application as a “contract evidencing a transaction in commerce,” which was covered by the FAA, rather than as an employment contract within the meaning of the FAA exclusion from coverage of “contracts of employment of seamen,- railroad employees, or any other class of workers en- gaged in foreign or interstate commerce.”112 Most circuit courts which subse- quently have addressed this question outside of the collective bargaining context have concluded that the FAA exclusion from coverage of these employment contracts “is limited to the contracts of employees who, like seamen and railway workers, are engaged directly in the channels of interstate commerce.”113 Under this narrow interpretation, the FAA applies to the vast majority of arbitration agreements in employment contracts, while a broader reading would remove the majority of employment agreements from the coverage of the FAA. In view of the U.S. Supreme Court’s recent expansion of the arbitrability of statutory claims,114 the dramatic volume of and increase in employment civil rights suits,115 the less ment to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds for revocation of any contract… [T]his claim of unequal bargaining power is best left for resolution in specific cases.” Id. 107415 U.S. 36 (1974). wsGilmer, 500 U.S. at 35. w9See Seus v. John Nuveen & Co., 146 F.3d 175 (3rd Cir. 1998) (collecting cases); Patterson v. Tenet Health Case, Inc., 113 F.3d 832 (8th Cir. 1997); Cole, 105 F.3d 1465. ll°See, e.g., Me Williams v. Logicon, Inc., 143 F.3d 573 (10th Cir. 1998); Miller v. Public Storage Management, 121 F.3d 215 (5th Cir. 1997). 1 “O’Neil v. Hilton Head Hosp., 115 F.3d 272 (4th Cir. 1997) (Family and Medical Leave Act); Kuehner v. Dickinson & Co., 84 F.3d 316 (9th Cir. 1996) (Fair Labor Standards Act); Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110 (3d Cir. 1993) (ERISA). 112500 U.S. at 25, n.2.; 9 U.S.C. § 1. U3See, e.g., Seus, 146 F.3d at 178; Patterson, 113 F.3d at 835-836; Cole, 105 F.3d at 1471. Also see Pryner, 109 F.3d 354 (arbitration clause in collective bargaining agreement; finding that legislative history supports a narrow reading of the § 1 exclusionary clause). But see Craft v. Campbell Soup Co., 161 F.3d 1199 (9th Cr. 1998) (holding that the Federal Arbitration Act does not apply to labor and employment contracts). ll4Mitsubishi, supra note 88. 115COMMISSION ON THE FUTURE-OF WORKER-MANAGEMENT RELATIONS, U.S. DEFT. OF LABOR AND This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 711 than clear legislative history,116 and the post-Gilmer circuit court decisions on the subject, it seems fair to predict that the U.S. Supreme Court will adopt the narrow interpretation and have the FAA cover most employment contracts with arbitra- tion clauses.117 Some circuits also have attempted to refine and elaborate the Gilmer rule and have required additional proof to enforce agreements to arbitrate employment discrimination claims. Some of the circuits require a “knowing” agreement to arbitrate Title VII and ADA claims in which the “employee must explicitly agree to waive the specific right in question.”118 The District of Columbia Circuit has required the employer to pay the arbitrator’s fees and expenses under a mandatory arbitration clause.119 The Eleventh Circuit has refused to compel arbitration of a Title VII claim because the arbitration agreement limited the remedy to damages for breach of contract.120 One recent decision cast a cloud on continued enforcement of mandatory arbitration agreements involving Title VII claims. In Duffield v. Robertson Ste- phens & Co., the Ninth Circuit held that in enacting the Civil Rights Act of 1991, Congress intended to preclude enforcement of “compulsory” agreements to arbi- trate Title VII claims.121 Rejecting a “plain text” reading of the ADR provision which states, “where appropriate and to the extent authorized by law, the use of alternative means of resolution including .. . arbitration is encouraged to resolve disputes arising under the Acts or provisions of federal law amended by this Title,”122 the Ninth Circuit focused on the prefatory phrase (“to the extent authorized by law”) and concluded that it referred to Gardner-Denver and not to Gilmer and thus that Congress meant to authorize only “voluntary” arbitration U.S. DEPT. OF COMMERCE REPORT & RECOMMENDATIONS: EXECUTIVE SUMMARY, 25 (Dec. 1994) (hereinafter DUNLOP REPORT). 116For a thorough analysis of the legislative history, compare Samuel Estreicher, Predispute Agreements to Arbitrate Statutory Employment Claims, 12 N.Y.U.L. REV. 1344, 1369 (December 1997) (hazarding the prediction that the U.S. Supreme Court will adopt a narrow reading of the § 1 exclusion) with Matthew W. Finkin, “Workers’ Contracts” under the United States Arbitration Act; an Essay in Historical Clarification, 17 BERKELEY J. OF EMP. & LAB. L. 282 (1996) (concluding that Congress intended to exclude all employment contracts). 117See Estreicher, supra note 116 at 1371-1372. 118Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756, 760-762 (9th Cir. 1997) (ADA); Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299 (9th Cir. 1994), cert, denied, 116 S. Ct. 61 (1995) (Title VII); Cosgrove v. Shearson Lehman Bros., 105 F.3d 659 (6th Cir. 1997), cert, denied, 118 S. Ct. 169 (1997) (finding a “knowing” agreement to arbitrate); Cole, 105 F.3d 1465. But see Seus, 146 F.3d 175 (treating the knowing and voluntary standard equivalent to contract law grounds, such as fraud or duress, for revocation of any contract). ll9Cole, 105 F.3d at 1483-1485. 120Paladino v. Avnet Comp. Tech., Inc., 134 F.3d 1054 (llth Cir. 1998). 121144 F.3d 1182 (9th Cir. 1998). The court also affirmed the District Court’s rejection of Duffield’s argument that “the arbitration agreement imposes an unconstitutional condition of employment” for lack of state action. Id. at 1200-1202. l22See supra note 93; Duffield, 144 F.3d at 1191. Like Gilmer, Duffield agreed to arbitration in a Form U-4 securities registration, with NASD. Note that NASD voted subsequently to eliminate the requirement to arbitrate civil rights claims, pending approval of the Securities and Exchange Commission, although NASD will not prohibit firms from including mandatory arbitration of such claims in their employment contracts. Id. at n.l. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 712 FITZGIBBON agreements, which the court defined as arbitration agreements entered after a dispute arises.123 The Duffield decision caused a split among the circuit courts, and the next case specifically to address the issue reached the opposite conclusion. In Seus v. Nuveen & Co.,124 the Third Circuit refused to interpret the ADR provision of the Civil Rights Act of 1991, in effect, to repeal the FAA as to future Title VII and ADEA claims, noting that the ADR language expressly encourages arbitration of these claims and that “ample” legislative history supports this literal interpretation and suggesting that the phrase “where appropriate and to the extent authorized by law” referred not to Gardner-Denver but to the FAA or at least to Gilmer, which was decided 6 months prior to passage of the act.125 It is noteworthy that the Duffield case does not stand for the proposition that Congress intended to restrict the resolution of Title VII claims to courts. Rather, according to Duffield, Congress intended to preclude resolution of these claims in arbitration only if the arbitration agreement was compulsory or mandatory, that is, where an employee “agrees” to arbitrate statutory claims as a condition of employment or of continued employment. However, in view of the fact that the plain language and some legislative history of the ADR provision of the Civil Rights Act of 1991 supports arbitration without distinguishing nonmandatory from mandatory, Congress failed to make this intention crystal clear in the Civil Rights Act of 1991, and the FAA already provides that courts may refuse to enforce arbitration agreements on ordinary contractual grounds such as duress and unconscionability.126 As such the Duffield decision may be viewed as an attempt to get around the U.S. Supreme Court’s conclusion in Gilmer that “[m]ere inequality in bargaining power, however, is not a sufficient reason to hold that arbitration agreements are never enforceable in the employment context.”127 Unlike the aforementioned circuit courts which have attempted to elaborate or to refine the Gilmer decision, the Fourth Circuit has extended the obligation to submit individual statutory claims to arbitration under collective bargaining agreements despite the Gardner-Denver decision which Gilmer distinguished and 123Abstracting from the issue of congressional intent, this conclusion that postdispute agree- ments are enforceable sounds suspiciously similar to the 19th-century judicial hostility to arbitration, a classic example of which is Tobey v. County of Bristol, 23 F. Cas. 1313 (C.C.D. Mass. 1845) (No. 14,065). 124146 F.3d 175. 125Id. at 183. The Third Circuit noted that there also is ample legislative history supporting a “plain meaning” interpretation of this language. Id. The Third Circuit also rejected Seus’s contention that the Older Workers Benefit Protection Act of 1990 (OWBPA) requirement of a knowing and voluntary waiver of any right or claim under the ADEA applies to the right to jury trial in district court and concluded rather that this provision applies to the waiver of substantive rights. Id, Also see Williams v. Cigna Financial Advisors, Inc., 56 F.3d 656, 660-661 (5th Cir. 1995) (“OWBPA protects against the waiver of a right or a claim, not against the waiver of a judicial forum.”). On similar reasoning, the Third Circuit rejected Seus’s contention that the arbitration agreement was invalid because her employer required a waiver of statutory rights to obtain employment, akin to 19th-century “yellow dog” contracts. Again the court noted that signing the Form U-4 waived no substantive statutory rights. 126Federal Arbitration Act, 9 U.S.C. § 2 (1947). 127500 U.S. at 33. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 713 failed to overrule.128 Other circuits have rejected this analysis and allowed union employees to bring statutory claims to court without exhausting the arbitration provided by the collective bargaining agreement.129 The U.S. Supreme Court addressed this split of circuit authority in the 1998 term in Wright v. Universal Maritime Service Corp.130 In a unanimous decision, the Supreme Court con- cluded that a union-negotiated waiver of an individual employee’s right to resolve a federal employment discrimination claim in a judicial forum must be clear and unmistakable, without deciding “whether such a waiver would be enforceable.”131 To recap briefly, in mid-1998 the legal landscape changed. In Faragher and Burlington, the U.S. Supreme Court issued a new standard for assessing employer liability for sexual harassment claims, and in Oncale the Supreme Court decided that Title VII prohibits same-sex sexual harassment. The Duffield decision fore- closed enforcement of “compulsory” agreements to arbitrate Title VII claims in the Ninth Circuit. Assuming that the majority of circuits continue to enforce mandatory agreements to arbitrate Title VII claims, the next question is whether an alternative dispute resolution procedure including mediation and/or arbitration may handle sexual harassment claims and in the process serve the interests of employees, employers, and Title VII. IV. Mediation and Arbitration of Sexual Harassment Claims A. Introduction Evaluation of whether mediation and arbitration are appropriate processes for resolution of sexual harassment claims and problems in the workplace first requires assessment of the “standard” (i.e., non-ADR) procedure of EEOC charge handling and resolution in court. The section that follows demonstrates that because of the volume of employment discrimination claims and limited agency and judicial resources, the great majority of sexual harassment claims are not resolved by the EEOC or the courts. Consequently, alternative methods of dispute resolution should be considered. Again, the focus of this inquiry is restricted to mediation and arbitration as two methods that have been used to resolve labor disputes for many years, are becoming more widely used to resolve nonunion employment disputes, and rely on the intervention of a neutral third party. As previously noted, the neutral mediator facilitates the negotiations of the parties and lacks authority to impose a resolution on the parties. As such, mediation is generally viewed as an acceptable and appropriate process for resolution of these claims and the reasons supporting this conclusion are explored in the section Mediation of Sexual Harassment Claims. It is followed by an examination of the criticisms of the more controversial ADR process of arbitration, which concludes 12SSee, e.g., Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875 (4th Cir.) cert, denied, 117 S. Ct. 432 (1996). l29See, e.g., Pryner, 109 F.3d 354; Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519 (llth Cir. 1997). 130119S. Ct. 391 (1998). 131Id. at 397. The Court reversed the Fourth Circuit because the collective bargaining agree- ment in issue lacked “a clear and unmistakable waiver of the covered employees’ rights to a judicial forum for federal claims of employment discrimination.” Id. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 714 FITZGIBBON that so long as the arbitration procedure provides for a fair process which meets certain accepted standards of “due process,” arbitration may provide, among other things, the practical benefits of access to a forum to resolve the problem and a resolution closer in time and context to the workplace that exerts a conduct- regulating effect on the workplace. The concluding section notes that the U.S. Supreme Court decisions in Faragher and Burlington will prompt employers to adopt new rules addressing sexual harassment in the workplace, which will raise issues similar to those raised by other employment rules, the resolution of which will turn on the facts of the individual case and that mediators and arbitrators are well equipped to handle these issues. B. Volume of Employment Discrimination Claims “It is by now well recognized that hostile environment sexual harassment by supervisors (and, for that matter, by co-employees) is a persistent problem in the workplace,” the U.S. Supreme Court noted in Faragher. It is also well known that the EEOC, the agency responsible for the enforcement and administration of Title VII claims,133 cannot process all the charges filed due, in part, to limited funding and the volume of charges filed. In recent years, the EEOC has received approximately 80,000 charges of discrimination annually.134 In mid-1995 the EEOC adopted a new priority charge processing system under which charges are screened and meritless claims are quickly dismissed.135 Subsequently, the agency realized a significant reduction in its case backlog—from 81,000 pending charges to 65,000. Although this represents a vast improvement, there are still approx- imately 80,000 new charges being filed on top of the 65,000 unresolved charges, and the average time for EEOC investigation of a charge is more than 1 year.137 It is significant that as part of its response to the caseload crises, the EEOC has authorized regional offices to adopt mediation programs.138 The EEOC mediation programs, in which participation is completely volun- tary, encourage the parties to agree to mediate mainly charges that fall into Category B of the charge prioritization system, that is, charges that require l32Faragher, 118 S. Ct. at 2288. 133Title VII, 42 U.S.C. § 2000e-5(g). The EEOC also is responsible for the processing of ADEA and ADA claims. ADEA, 29 U.S.C. § 626(b) (1994); ADA, 42 U.S.C. § 12117 (1994). 134In the fiscal year ending September 30, 1997, 81,000 charges were filed, and 78,000 charges were filed the fiscal year 1996. See EEOC Reaped Record Benefits, Culled Backlog of Charges Last Year, Daily Lab. Rep., March 20, 1998, available in LEXIS, 1998 DLR 54 d!4. In fiscal year 1993, 87,942 charges were filed and 91, 189 charges were filed in fiscal year 1994. U.S. Equal Employ- ment Opportunity Commission, ANNUAL REPORT 8, table 1 (1994). 135See EEOC: Employers Participating Key to Success of ADR Program, EEOC Official Says, Daily Lab. Rep., Dec. 6,1996, available in LEXIS, 1996 DLR 235 d!8; EEOC: EEOC’s Miller Says Enforcement Plan Puts Focus on High Impact Litigation, Daily Lab. Rep., March 21, 1997, available in LEXIS, 1997 DLR 55 d20. 136See EEOC Reaped Record Benefits, supra note 134. 137Letter from the EEOC San Diego Area Office entitled Invitation to Engage in Mediation, to Charging Party or Respondent (June 9, 1998) (on file with author) (hereinafter San Diego EEOC letter). 138/d.; see EEOC’s Alternative Dispute Resolution Policy Statement, II EEOC COMPL. MAN. (BNA) at N-915.002, July 17, 1995. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 715 additional evidence to assess the likelihood that a violation occurred.139 So far the mediation program has been successful, achieving a 52% settlement rate in its pilot program and resulting in benefits to charging parties “comparable to those won in litigation in half the time.140 Despite success in reducing pending charges, the EEOC still is able to litigate only a few cases annually—no more than 400, by one estimate141 —and the same is true for resolution in conciliation.142 Consequently the majority of charging parties face the prospect of pressing these charges through the courts or other means. Since the late 1960s, the federal courts have experienced an explosion of litigation in the employment field, which has continued into the 1990s.143 To illustrate: The number of employment civil rights suits filed rose from 8,727 in 1990144 to 23,152 in 1996 and to 23,796 in 1997.145 More than 90% of these cases are resolved without a trial, and, in general, case resolution still takes an average of 8 months from filing to disposition.146 The volume of EEOC charges and federal employment discrimination filings demonstrates that the vast majority of claimants do not achieve a resolution through the EEOC or the courts. It may be assumed from the EEOC priority processing that many of these claims are legally frivolous. As noted earlier, however, one wonders how many of these unresolved charges involve a merito- rious claim for limited damages due either to the employee’s earnings bracket or the employee remaining on the job. C. Mediation of Sexual Harassment Claims At least since mid-1995, the EEOC has been on record in support of voluntary ADR programs to resolve discrimination disputes.147 Obviously the EEOC adop- tion of its own program encouraging, facilitating, and providing mediation dem- onstrates the agency’s unqualified support for a fair, voluntarily entered mediation process.148 139The EEOC charge processing and litigation recommendations implemented April 21, 1998, provides for mediation of category B charges and for category A, National Enforcement Plan cases, with the approval of the Regional Attorney and District Director and excludes category C charges from the mediation program. See EEOC Charge Processing and Litigation Recommendations Implemented April 21, 1998, Daily Lab. Rep., April 22, 1998, available in LEXIS, 1998 DLR 77 d33. IWEEOC: Former EEOC Commissioner Sees Agency Deferring to ADR Procedures, Daily Lab. Rep., March 3, 1998, available in LEXIS, 1998 DLR 41 d!4. l4lSee EEOC Reaped Record Benefits, supra note 134. 142For example, the EEOC reported 607 successful conciliations in fiscal year 1994, the highest number of conciliations achieved in 5 years. U.S. Equal Employment Opportunity Commission, ANNUAL REPORT 11 (1994). 143DUNLOP REPORT, supra note 115, at 25. 144ADMINISTRATIVE OFFICE OF THE U.S. COURTS, UNITED STATES COURTS: SELECTED REPORTS, Table C2A, A1-A58 (1994). 1451997 REPORT OF THE DIRECTOR, JUDICIAL BUSINESS OF THE UNITED STATES COURTS, Table C-2A at 132 (1997). 146W. at Table C-4 at 152-153 and Table C-5 at 158. 147EEOC, supra note 138. 148It is noteworthy that at least the San Diego EEOC Mediation Program provides that the This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 716 FITZGIBBON The different mediation styles that exist149 may be roughly divided into two overlapping categories. The classical nondirective style requires the mediator to serve only as a facilitator who enhances and clarifies communication to assist the parties in reaching settlement, while the evaluative mediator gives opinions, predictions, and evaluations.150 Under either style, a mediator will examine an employer’s sexual harassment policies in order to assist in the resolution of the dispute. Focusing on the facilitative and nonadversarial aspects of mediation, as mentioned above, the EEOC has noted that many discrimination claims do not raise discrimination issues but rather raise workplace concerns, which would be especially conducive to interest-based dispute resolution.151 The generally recognized benefits of mediation apply as well to the resolution of sexual harassment claims. First and foremost, mediation is a nonbinding process. The benefit of this is that the parties must agree to the terms of any settlement—a resolution may not be imposed on them. The drawback, of course, is that the parties may fail to agree and the dispute will continue. It is noteworthy that, for example, some company ADR plans152 and many court-connected mediation programs153 require the parties to participate in the mediation process. This “mandatory” aspect of the prospect does not detract from the nonbinding nature of mediation so long as the process is otherwise fair.154 The Standards of Conduct for Mediators developed in 1995 by and endorsed by the American Arbitration Association, the American Bar Association, and the Society for Professionals in Dispute Resolution establish a general framework for the professional conduct of mediation.155 The standards list party self-determi- nation as the cornerstone of mediation and emphasize mediator responsibility for a quality process.156 Mediator impartiality, disclosure of actual and potential conflicts of interest, competence, confidentiality, truthful advertising, and disclo- sure of fees are also listed as standards of conduct to assure the ethical practice of mediation.157 Also in 1995 a task force of representatives of the American Arbitration Association, the American Bar Association, the American Civil Lib- erties Union, Federal Mediation and Conciliation Service, National Academy of parties’ signed, written agreement to a resolution is not effective until it is signed by the director of the EEOC office. See supra note 137. 149See, e.g., Donald T. Weckstein, In Praise of Party Empowerment—and Mediator Activism, 33 WILLAMETTE L. REV. 501, 504-508 (1997). 150See, e.g., Leonard L. Riskin, Mediator Orientations, Strategies and Techniques, 12 ALTER- NATIVES 111, 111-112 (1994). 151GAO/GDD, supra note 18, at 11-12. l52See EEOC, supra note 140. 153For example, when the court orders mediation, attendance of parties and counsel is mandatory in the U.S. District Court for the Eastern District of Missouri. E.D. Mo. Local Rules 6.01-6.05. See also Rogers & McEwen, supra note 65, App. B; Rauma and Stienstra, supra note 64. 154John D. Feerick, Standards of Conduct for Mediators, 79 JUDICATURE 314 (May-June 1996). Also see Christopher A. Barreca et al., Document, A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship, DISP. RESOL. J., Oct-Dec 1995, at 37-39 (hereinafter Due Process Protocol). 155Feerick, supra note 154, at 316-317. 156W. 157W. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 717 Arbitrators, National Employment Lawyers Association, and the Society of Pro- fessionals in Dispute Resolution wrote a Due Process Protocol for Mediation and Arbitration of Statutory Disputes arising out of the Employment Relationship (Due Process Protocol), which encourages mediation and arbitration of statutory employment disputes so long as certain due process safeguards exist.158 To ensure a fair mediation, the Due Process Protocol provides that the parties have a right to a representative of their choice, that the employer should pay part of the fee of the employee’s representative, and that the parties should have a fair mediator selection process and should share the mediator’s fee.159 The Due Process Protocol further provides that mediators should have knowledge of the statutory issue, experience or training in the mediation process, and familiarity with workplace and employment disputes and that they should disclose any conflicts of interest.160 The mediation process is faster (mediation hearings often take only 1 day) and less expensive than going to court even if the parties must pay attorney repre- sentation fees,161 the fees of the mediator, and the cost of the meeting room. If the matter does not settle, at least the attorney’s participation is useful in the subsequent resolution of the case; that is, the attorney’s work may count toward the preparation for arbitration or trial and thus should not significantly increase the overall costs to the parties. It cannot be denied that all parties benefit from the earliest possible resolution of a dispute. Thus, although mediation may be offered by the EEOC after the employee has decided to file a charge or by the trial court after the employee obtains a right to sue letter or by the appellate court, the parties may be best served by a mediation process connected to the workplace. One U.S. General Accounting Office (GAO) study found that 80% of private companies with more than 100 employees reported using mediation.163 Based on a broad and unscientific exam- ination of ADR use, the GAO subsequently concluded that mediation successfully resolved a high percentage of cases.164 As the Standards of Conduct for Mediation and the Due Process Protocols demonstrated, mediation offers the opportunity to have a neutral third party who has experience in the mediation process and who has a special knowledge and understanding of the particular claims, such as sexual harassment claims. For example, the mediator can empower the complainant by “giving her the oppor- tunity to be heard, understood and treated respectfully” while also providing the 158Due Process Protocol, supra note 154. 159Id. 160Id. 161 Although some mediation procedures exclude attorneys or limit attorney participation, see, e.g., San Diego EEOC letter, supra note 137; the Due Process Protocol specifically calls for the opportunity to have an attorney, supra note 154 at 38. 162GAO/GGD, supra note 18, at 4. 163’Id. at 14-15. In most federal agencies which reported, mediation was the only form of ADR used. Id. at 14. This 1997 GAO study cites its earlier July 1995 GAO report of its ADR survey of a nationally representative sample of private companies with over 100 employees concerning ADR use in 1994. 164The GAO reports that private companies and federal agencies that used mediation had a high percentage of resolution in mediation. Id. at 15. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 718 FITZGIBBON alleged harasser the opportunity to explain his view of the situation.165 The mediator may also have gained a particular understanding of the psychology and dynamics of sexual harassment.1 6 Mediation gives both parties the opportunity to hear the opposing party’s point of view without agreeing with it and to settle despite disagreement with the other side’s perspective.167 In sexual harassment cases, mediation offers the unique opportunity to resolve the dispute without reaching a credibility determi- nation, which could be damaging to one or both parties.168 In some sexual harassment situations, the victim seeks to end the harassment and stay on the job. As such she has a continuing relationship at least with the employer.169 Mediation has long been recognized as particularly suitable to resolve disputes in which the parties have an ongoing relationship.170 The broad, unlimited, creative remedies available in mediation create more options for settlements. The invitation to mediate of one EEOC office notes that matters beyond the jurisdiction of the EEOC may be part of the resolution.171 In some sexual harassment cases an apology with little else may resolve the case.172 Other solutions may include “transfer or promotion in lieu of job loss, job modifications,” implementation or refinement of workplace sensitivity training, recommendation and reference letters, and funding, for example, for career enhancement, mediation, and attorney fees.173 The privacy and confidentiality of the mediation process may be of particular value to all involved in a sexual harassment dispute. It may be embarrassingly difficult for the complainant to explain the situation in any setting, but the private mediation hearing and the informality of the process should be less stressful than a more structured public procedure such as a trial. In cases of hotly contested facts or in cases where the alleged harasser is embarrassed and apologetic, the alleged harasser will also value the private forum.174 The private procedure may also contribute to the ability of one or both parties to remain on the job after settlement.175 In addition to the foregoing possible benefits of resolving sexual harassment suits in mediation, it is noteworthy that a 1997 GAO study recognized that an 165See Gazeley, supra note 55, at 633. 166See, e.g., Gazeley, supra note 55 at 623-631. 167Linda Stamato, Sexual Harassment in the Workplace: Is Mediation an Appropriate Forum? 10 MEDIATION Q., 167 169 (1992). 16SSee Sara Adler, Sexual Harassment Claims Lend Themselves to Mediation, L.A. DAILY J. Feb. 18, 1994 at 7. i69See, e.g., Carrie A. Bond, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 FORDHAM L. REV. 2489, 2514 (1997). 170Lon L. Fuller, Mediation—Its Forms and Functions, 44 S. CAL. L. REV. 305, 307-309 (1971). mSee San Diego EEOC letter, supra note 137. 172Bond, supra note 169, at 2517. 173See Gazeley, supra note 55, at 633. In her experience as a mediator, the author has encountered parties seeking these remedies; in addition, in one case an apology and under $5,000 was sought, and in another case a seemingly inconsequential job “perk” was the key to a solution (in addition to a monetary settlement). 174W. at 633, 640; Adler, supra note 168. I7SBond, supra note 169, at 2501-2502, 2514. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 719 interest-based dispute resolution procedure, such as mediation, may resolve the parties’ conflict “at a more basic level, perhaps even bringing about a change in the work environment in which their conflicts developed.”17 This suggests that the mediation of sexual harassment claims may not only have a “transformative” effect177 on the individual parties but also may exert a conduct-regulating effect on the workplace. Thus mediation offers the opportunity for a speedier dispute resolution process, which is more closely connected to the workplace and which may exert a conduct regulating effect. D. Arbitration of Sexual Harassment Claims Various recent studies have found that private companies that adopt ADR policies often adopt a policy that involves mediation and arbitration.178 Reported surveys indicate that while there has been increased use of alternative dispute resolution methods in the private sector to resolve workplace discrimination complaints, mediation is widespread while arbitration is not.179 The GAO re- ported that a study of ADR use in 1994 found that 80% of private companies with more than 100 employees used mediation whereas only 19% of them used arbitration.180 A 1995 survey of 300 major U.S. corporations found that approx- imately 27 corporations had adopted a multistep dispute resolution process which included mediation and arbitration, and only half of those required participation in the process.181 A more recent survey of 80 primarily national companies found 36 employers that had predispute arbitration procedures for employees who were not represented by a union, and approximately 2.7 of those were mandatory for some employees.182 Again, most of these 36 employers provided preliminary procedural steps, including mediation, prior to arbitration. The Gilmer decision sanctioning predispute agreements to arbitrate, the prospect of jury trials, and the possibility of punitive damages under the Civil Rights Act of 1991 clearly influenced some employers to adopt mandatory arbitration plans.183 Employers are concerned that the sympathy of juries is with individual employees and that results in discrimination cases are unpredictable.184 The large and increasing costs of litigation in terms of time and money are also a major factor in employer decisions to adopt an arbitration scheme, including a predispute mandatory arbitration procedure. 8S Strong opposition to mandatory arbitration exists. The Commission on the Future of Worker-Management Relations under Chairman John T. Dunlop, 176GAO/GGD, supra note 18, at 11. 177 See, e.g., Robert A. Baruch Bush & Joseph P. Folger, THE PROMISE OF MEDIATION RESPOND- ING TO CONFLICT THROUGH EMPOWERMENT AND RECOGNITION 11-12 (1994). 178Mei L. Bickner et al., Developments in Employment Arbitration, DISP. RESOL. J., Ian. 1997, at 8, 79; GAO/GGD, supra note 18 at 14; EEOC, supra note 140. 179GAO/GGD, supra note 18, at 13-14. 180«. at 14. 181EEOC, supra note 140. Of 82 respondents, 54 used some form of ADR, and one half used only an “open door” policy. Id. lS2Bickner et al, supra note 178, at 15, 78. 183H. at 10. 184M at 79. lssld. at 78-79. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 720 FITZGIBBON former secretary of labor, recognized the need for and recommended improve- ment in the resolution of workplace rights violations as 1 of 10 goals for the 21st century, but it also recommended that mandatory arbitration agreements should be unenforceable.186 Essentially the Dunlop Commission opposed employer impo- sition of arbitration as a condition of employment, which would force an em- ployee to choose between the right to go to court or giving up the job.187 Opposition of the National Employment Lawyers Association prompted a 1995 threat to boycott the arbitration and mediation services of two major providers, the American Arbitration Association and JAMS/ENDISPUTE.188 In July 1997 the EEOC reiterated and elaborated its position that mandatory agreements to arbi- trate discrimination claims contradict the fundamental principles of the anti- discrimination laws.189 The EEOC policy statement evokes and cites Owen Fiss’s attack on private alternative dispute resolution of a decade ago190 by asserting the superiority of judicial resolution of statutory claims because the judge is a public official accountable to the public with coercive power over the parties, jury trials are available, court decisions are subject to judicial review, judicial proceedings are public, court decisions notify the community of unlawful behavior, and private dispute resolution will stifle development of the law.191 In addition, the EEOC maintains that compulsory arbitration is structurally biased against employees, inter alia, because the private nature of the process allows the employer to set the rules (e.g., limited remedies, restricted discovery) and because the employer gains an advantage as a “repeat player.”192 In response to these criticisms, it must first be emphasized that the EEOC does not oppose a “voluntary” arbitration agreement in which the employee actually agrees to resolve an existing statutory discrimination claim in arbitration.193 In this context, the EEOC expressly recognizes that the judicial system has its drawbacks and that “binding arbitration, can offer in particular cases other valuable benefits to civil rights claimants, such as relative savings in time and expense.”194 With this said, the attack on mandatory arbitration agreements boils down to an attack on the coercive, adhesive nature of the contract formation, i.e., whether an individual employee’s agreement, to give up the right to go to court to resolve a statutory employment dispute in order to gain or retain a job, represents a “choice” which courts should enforce. As previously noted in relation to the discussion of the Duffield decision, these attacks ignore the U.S. Supreme Court’s 186Dunlop Report, supra note 115, at 30-33. 187W. at 32. lssSee Arbitration: ADR Services Will Maintain Practice of Hearing Compulsory Arbitration Cases, Daily Lab. Rep., Nov. 6, 1995, available in LEXIS, 1995 DLR 214 dlO. 189’See EEOC Policy Statement on Mandatory Arbitration, H EEOC Compl. Man. (BNA) at 915.002 (July 10, 1997), cited in EEOC Policy Statement on Mandatory Arbitration, Daily Lab. Rep., July 11, 1997, available in LEXIS, 1997 DLR 133 d30. 190Owen Fiss, Against Settlement; 93 YALE L.J. 1073 (1984); Out of Eden, 94 YALE L.J. 1669 (1985). 191EEOC Policy, supra note 189. I92ld. 193Id. at n.l, and Part VI. I94ld. at n.21 and Part VI. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 721 conclusion in a number of cases that an agreement to resolve a statutory claim in arbitration is not tantamount to a substantive waiver of that jight195 but rather represents a forum selection, and they ignore the conclusion in Gilmer that the employer’s superior bargaining position does not invalidate a mandatory agree- ment to arbitrate.196 To avoid enforcement of a contract on the ground of unconscionability requires not only proof of lack of meaningful assent to the bargain but also proof of “unreasonably favorable terms.”197 As noted in relation to mediation, in 1995 a task force of representatives of the American Arbitration Association, the Amer- ican Bar Association, the American Civil Liberties Union, Federal Mediation and Conciliation Service, National Academy of Arbitrators, National Employment Lawyers Association, and the Society of Professionals in Dispute Resolution wrote the Due Process Protocol for mediation and arbitration of statutory em- ployment disputes.198 All of the aforementioned organizations have endorsed the Due Process Protocol except the National Employment Lawyers Association, which has endorsed the substantive provisions of the protocol.199 The Due Process Protocol task force could not agree and took no position on the issue of mandatory predispute arbitration clauses except to say that “such agreements should be knowingly made.”200 The protocol identified the following due process safeguards: employees are entitled to have a representative of their choice and some reimbursement of the employee’s attorney fees should be considered; employees must have adequate access to information necessary to process their claims; and the parties should mutually select the mediators and arbitrator(s) from a diverse list of skilled, knowledgeable, and unbiased neutrals and should share the fees and expenses of the neutral.201 The protocol specifies that arbitrators should have the power to award remedies equal to those provided by the law and should issue an opinion and award with reasons and that an “arbitrator’s award should be final and binding and the scope of review should be limited.”202 It is submitted that a mandatory predispute arbitration agreement which meets the standards of the Due Process Protocol will provide a fair process and forum for the resolution of statutory employment claims and should not be subject to attack on grounds of unconscionability or otherwise for a deficient process. Judicial concern and suspicion should not be aroused by a mandatory arbitration agreement that provides for mutual selection of an impartial arbitrator, adequate discovery, and complete statutory remedies, and such agreements may then be routinely enforced. As previously noted, the assurance of avoidance of court and final resolution l95Gilmer, 500 U.S. 20; Mitsubishi, 473 U.S. 614. l96Gilmer, 500 U.S. 33. 197See Williams v. Walker-Thomas Furniture Co., 350 F.2d 445,449 (D.C. Cir. 1965); E. Allen Farnsworth, CONTRACTS 323-339 (2d. ed. 1990). 198Due Process Protocol, supra note 154, at 37-38. 199American Arbitration Association Rules for Resolution of Employment Disputes, Daily Lab. Rep., May 28, 1997, available in LEXIS, 1997 DLR 102 d29. 200Due Process Protocol, supra note 154, at 37-38. 201Id. at 38-39. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 722 FIT2GIBBON of employees’ statutory discrimination claims in arbitration provides a strong incentive for employers to adopt a mandatory arbitration program. A variety of benefits flow from resolution of these claims in arbitration. The rationale for a mandatory predispute arbitration agreement is that if arbitration is not mandatory for both parties, the employer may only agree to arbitrate cases it deems worthy of litigation.203 For similar reasons, it is unlikely that an employer will enter into a postdispute agreement to arbitrate a statutory claim but will instead wait out most routine claims that are likely to go nowhere.204 Theodore J. St. Antoine, who is a renowned labor and employment law scholar, arbitrator, former dean of the University of Michigan School of Law, and reporter for the Model Employment Termination Act, has concluded that mandatory arbitration should not be auto- matically rejected because sometimes it will provide the only opportunity for an employee to have his or her claim heard and resolved.205 As the previously cited statistics demonstrated, the EEOC is overworked and underfunded and is unlikely to resolve more than a small percentage of the charges filed in litigation or conciliation or in mediation. Claimants thus are left with a right to sue but little chance of obtaining an attorney representative to have their day in court. St. Antoine noted that experienced attorneys accept roughly only 1 of 100 potential discrimination cases because it is not worth their time to litigate the majority of cases.206 In view of this and assuming that a mandatory arbitration program complies with the Due Process Protocol and affords statutory remedies, St. Antoine has suggested that the consideration of the enforceability of mandatory predispute agreements to arbitrate should focus on a pragmatic assess- ment of what is best for the employees, the employer, and the public.207 In pragmatic terms, a mandatory arbitration program may provide employees the real benefit of access to a dispute resolution procedure and the real opportunity not only for individual relief, but also to effectuate the national anti-discrimination policy. As such arbitration may be viewed as supplementing the work of the courts. In 1996, the American Arbitration Association (AAA) adopted a new set of National Rules for the Resolution of Employment Disputes including mediation and arbitration rules, which reflect the Due Process Protocol and include “proce- dures which ensure due process in both the mediation and arbitration of employ- ment disputes.”208 These rules specify that AAA will not administer cases under a dispute resolution program that deviates materially from the minimum due process requirements of the American Arbitration Association rules and the Due 203Susan A. FitzGibbon, Reflections on Gilmer and Cole, 1 EMPLOYEE Rxs. AND EMPLOYMENT POL’Y J. 221-248 (1997). 204See Theodore J. St. Antoine, Proceedings of the 1997 Annual Meeting, Association of American Law School Sections on Employment Discrimination Law and Alternative Dispute Resolution (January 7, 1997), in 1 EMPLOYEE RTS. AND EMPLOYMENT POL’Y J. at 291 (1997). 205Id. at 291-292. 206’Id. at 291. 2mld. at 290-292. 208AAA Rules as revised were effective on June 1, 1997. AAA Rules, supra note 199. In 1993 AAA issued a special set of rules for sexual harassment cases, which provides for fact finding prior to mediation and arbitration. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 723 Process Protocol.209 JAMS/ENDISPUTE, another well-known provider of dis- pute resolution services, has also adopted a policy against providing arbitration services unless certain minimum fair process standards are met210 In view of the foregoing, It is submitted that any arbitration agreement, but particularly a mandatory arbitration agreement, should meet the standards of the Due Process Protocol.211 Another concern exists in mandatory and nonmandatory arbitration situations for a “repeat player effect” in which employers who use arbitration in a number of cases are perceived as gaining an advantage over individual employees who use it only once.212 There is an almost automatic repeat player effect where an arbitration procedure provides for employer selection of the arbitrator213 but •courts would likely be sympathetic to any employee resistance of such a proce- dure. One recent study of a small number of cases (31) found the existence of a repeat player effect, but the study did not establish its cause.214 This repeat player concern is minimized if the parties engage in mutual selection from a list drawn from a large pool of arbitrators which effectively limits repeat business.215 Under its new employment dispute rules, the American Arbitration Associa- tion sends parties the entire regional roster. If they cannot agree on an arbitrator, AAA sends a shorter list from which the parties strike the unacceptable names and number the remaining names in order of preference.216 If this procedure fails, AAA is empowered to appoint the arbitrator without submitting additional lists. A slightly different method of mutual selection suggested in the Due Process Protocol would assure selection by the parties—the arbitration provider could supply a list with an odd number of names and the parties would engage in alternate strikes until only one name remained.217 Under this procedure, which is often used in collective bargaining agreements, both parties bear equal risk in the selection process and the repeat player concern is avoided as much as possible. The repeat player effect may also be countered by groups of attorneys who represent plaintiffs in employment discrimination suits or women’s groups, which will gather and share information on arbitrators who appear on panels. It must also 209ld. 2l°See JAMS/ENDISPUTE, Issues Minimum Standards for Employment Arbitration, 6 WORLD ARE. & MEDIATION REP. 50 (1995). 2nC/ Bompey et al, supra note 86, at 31-34. 212See, e.g., Lisa A. Bingham, Employment Arbitration: The Repeat Player Effect, 1 EMPLOYEE RTS. AND EMPLOYMENT POL’Y J. 189, 190, 213-215 (1997). 213Some policies do so provide. Bickner et al, supra note 178, at 80. 214Bingham, supra note 212, at 213-214. Individual employees won something in 63% of all the cases studied but only won something in 16% of cases against repeat players. It must be emphasized that of a total sample of 232 cases, only 31 involved repeat players. Id. In an earlier study of employment arbitration cases, Bingham found “no evidence of a systematic pro-employer bias.” Id. at 204. 215W. at 216. 21SAAA Rules, supra note 199. 217The Due Process Protocol suggests that the parties choose an arbitrator from a list of an odd number of names with resume information, followed by “alternate striking of the names on the list, resulting in the designation of the remaining . .. arbitrator.” Supra note 154 at 39. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 724 FITZGIBBON be remembered that a reputation for fairness and balance generally are essential to a professional and a successful arbitrator.218 Shifting the focus more to the advantages of arbitration, the generally recog- nized benefits to employers and employees are a faster, and thus, less expensive, dispute resolution through a less formal adjudicative process which is private and confidential and offers the opportunity to have an expert decision maker.219 Although parties may agree to them, in general arbitration procedures do not provide for a motion to dismiss or for summary judgment. For employers this may require processing a “meritless” claim,220 but for employees this is additional evidence that an arbitration procedure affords access to a forum. The arbitration hearing is more structured than mediation, but the opportunity for a therapeutic effect still exists in that parties and witnesses may explain things in their own fashion and even make statements, if both parties agree, or if the arbitrator allows such statements on a motion by one party.221 As previously noted, this may be particularly important to the complainant and the accused. A written arbitration decision with reasons for finding an employer liable for sexual harassment or for upholding the discharge of the perpetrator of sexual harassment may send a clearer anti-discrimination message to the workplace than a distant court decision.222 The speed of resolution in arbitration also makes the reinstatement remedy a more realistic possibility, and this also may exert a conduct regulating effect on the workplace.223 E. Resolution of Sexual Harassment Claims After Faragher and Burlington Resolution of hostile environment sexual harassment disputes depends on a number of factors, including the victim’s perception of the situation. If the conduct is directed toward the victim, it must be unwelcome. However, a victim may also complain of a sexually hostile environment and harm from a relationship between other employees in the workplace, even a consensual relationship.224 Employer policies designed to address these situations and to avoid problems 21sCole, 105 F.3d at 1485-1486. 2I95e<? Murray et al., supra note 20 at 503-504. 220See, e.g., Bompey et al., supra note 86 at 35-36. 221 See, e.g., Roger I. Abrams et al., Arbitral Therapy, 46 RUTGERS L. REV. 1751 (1994). In arbitration, the rules of evidence are generally not followed. Also see generally, E. Allan Lind & Tom R. Tyler, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988). Lind and Tyler examine the subjective perception of procedural justice and suggest that procedure and process may be more important than the outcome. They suggest that one of the most important discoveries of procedural justice research is that even those receiving poor outcomes from a procedure respond more favorably if the process is fair. Most parties, they conclude, perceive a fair process when the procedure vests process control or a voice in those affected by the decision, when the treatment of the parties as well as the outcome is a process consideration, and when the procedure offers the parties the opportunity to express their views. 222Stephen W. Skrainka, The Utility of Arbitration Agreements in Employment Manuals and Collective Bargaining Agreements for Resolving Civil Rights, Age and ADA Claims, 37 ST. Louis U.L.J 985, 992-993 (1993). 223FitzGibbon, supra note 203, at 248. 22*See supra note 34. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 725 (e.g., favoritism) or to avoid liability (e.g., for sexual harassment) could be oppressive, intrusive, and unreasonable. For example, such policies may expressly or effectively regulate off-duty fraternization225 or require disclosure of a rela- tionship and require the parties to enter a “consensual relationship contract,” which is designed to limit liability if a consensual relationship between employees sours.226 Some policies (e.g., against nepotism or fraternization) are not new. Some have a rational business purpose (e.g., restricting dating or socializing with a competitor in some industries), whereas others do not, and courts have found some policies unenforceable.227 Employers have traditionally promulgated a wide variety of work rules, found in individual employment contracts, labor contracts, manuals, and posted notices, covering subjects ranging from discipline and safety rules to lunch breaks and work procedures. The majority of work rules in the collective bargaining con- text,22 and almost all rules in the at-will context are unilaterally imposed. In labor arbitration, arbitrators have recognized that employees must have notice of the rule (except for self-evident prohibitions) as an element of just cause for discipline or discharge.229 Obviously different employers have different employment rules. Unilaterally promulgated rules may raise issues of legality230 or of reasonableness. The determination of the reasonableness of the application of the rule in an individual case, including the issue of the reasonableness of an adverse employment action, depends on the individual facts of the case and the workplace context. To give a vivid example, a rule prohibiting spitting is viewed differently if the rule is in a steel mill or in a nursing home. The U.S. Supreme Court decisions in Faragher and Burlington will likely prompt most employers to adopt detailed rules of conduct concerning sexual harassment designed to shield employers from liability.231 These rules will likely be designed to eliminate ostensibly objectionable conduct and to provide evidence that the employer has adopted preventive and corrective measures as well as reporting opportunities and requirements. It is submitted that these rules will raise 22SWeiss, supra note 13. 226Mark Hansen, Love’s Labor Laws: Novel Ways to Deal with Office Romances After the Thrill is Gone, 84 ABAJ. 78, June (1998). 227See, e.g., Kraft, Inc. v. State, 284 N.W.2d 386 (Minn. 1976) (finding antinepotism policy effectively discriminates against women because of marital status in violation of state law). But see Harper v. TWA, 525 F.2d 409 (8th Cir. 1975) (rejecting a Title VII sex discrimination challenge of a policy prohibiting married employees from working in the same department, because the policy allowed the employees to choose which one would leave the department or, absent such a decision, provided that the least senior employee of the couple would have to leave). 228Under the National Labor Relations Act, management has a duty to bargain in good faith over mandatory subjects of bargaining, but the duty to bargain in good faith does not require the parties to reach an agreement. See, e.g., NLRB v. Borg Warner Corp., Wooster Div., 356 U.S. 342 (1958). For a discussion of limits on management’s right to take unilateral action, see ELKOURI, supra note 72, at 662-682. 229See, e.g., ELKOURI, supra note 72, at 930-933. 230See, e.g., Pasch v. Katz Media Corp., 1995 WL 469710 (S.D. N.Y. 1995) (denying motion to dismiss plaintiffs claim that demotion for living with a former co-worker violated New York’s Lawful Off Duty Conduct Law). Also see Kraft Inc., 284 N.W.2d 386. 23167 U.S.L.W. No. 2 at 2019-2020 (My 14, 1998). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 726 FITZGIBBON the same issues as other employment rules: issues of legality and reasonableness, uniformity of enforcement and application, a factual determination of whether the rule was violated, assessment of an appropriate remedy~either for a victim of harassment or a penalty for a harasser, and, implicitly, necessary corrections in the workplace. Such disputes, involving sexual harassment and prohibitory rules, involve a wide variety of fact patterns ranging from very minor situations232 to outrageous violations and call for a wide variety of remedies beyond those usually available in court. As Judge Edwards has noted, arbitral resolution of employment discrimina- tion cases will most likely depend on the facts and is not likely to raise novel issues of law,233 and arbitrators have been well equipped to deal with such issues. As previously noted, mediators also should be well able to facilitate settlement of these disputes. Because resolution of these issues will be intensely dependent on the facts and the workplace, and such cases rarely call for or present occasions for general rulemaking by appellate courts, it is submitted that arbitration and mediation conducted close in time to the violation are likely to be better problem- solving procedures than protracted court proceedings. In addition, courts will have no problem in taking on cases which require new rules of law or which require corrections for public policy violations. This conclusion is unassailable because even in labor arbitration cases, federal courts do not hesitate to substitute their judgment for that of the arbitrator, despite unequivocal U.S. Supreme Court decisions to the contrary.234 In vacating some awards, the courts have not hesitated to opine that the awards were outrageous. V. Conclusion Sexual harassment is discrimination. American society has a history of discrimination. Efforts to overcome problems, particularly a problem as serious as pervasive discrimination, seem at any given time too slow and too inadequate to those who are in the forefront of such a process. There is a natural intuitive urge 232It is worth repeating that these disputes are also likely to be susceptible to more creative solutions, which are not available in court. See supra note 173. Moreover, it is submitted that many of these cases call for a resolution grounded in common sense. Consider, for example, a labor case in which the author served as arbitrator, in which the employer based a discharge decision, in part, on the male grievant’s conduct of blowing a kiss from a distance to a female co-worker. The female co-worker testified at the arbitration hearing that she saw the act as a friendly gesture and could not imagine that anyone could be offended by it. But the employer believed that it could not ignore such behavior. 233Co/e, 105 F.3d at 1486; Malin, supra note 58. 234In his 1997 Presidential Address to the National Academy of Arbitrators, George №colau strongly criticized the 5th Circuit Court of Appeals for overturning an award reinstating an employee, which clearly drew its essence from the collective bargaining agreement, and he noted that most Circuit Courts (but not the Seventh, Ninth or D.C. Circuits) “overturned awards in one way or another on the flimsiest of grounds.” George Nicolau, Presidential Address, in ARBITRATION 1997 THE NEXT FIFTY YEARS. PROCEEDINGS OF THE FIFTIETH ANNUAL MEETING NATIONAL ACADEMY OF ARBITRATORS 1, 7 (Joyce M. Najita ed., 1997). For a discussion of the judicial ability and propensity to overturn labor arbitration decisions despite the extremely limited grounds of judicial review, see, e.g., Susan A. FitzGibbon, The Judicial Itch, 34 ST. Louis U.L.J. 485 (1990). This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 727 to improve society overnight, to satisfy one’s feeling of inadequate progress by some strong and visible action. Experience leaves no doubt, however, that societal progress is slow and often requires generational change. It cannot be doubted that there has been substantial progress in American society and in the American workplace since the Civil Rights Act of 1964 was passed. That more needs to be done does not detract from the fact of progress. The workplace is a community and the fact that many discrimination problems can be handled on the community level is a sign of progress and also is indispensable if the progress is to continue and the desired goal of a society free of discrimination is to become embedded in the consciousness of all people. Disputes which call for the intervention of courts, particularly federal appel- late courts, will remain. There will be disputes which will lend themselves to lawmaking or which will require class actions, or which require large damages or an authoritative judicial pronouncement because of an egregious violation or the national scope of the violation. No one can doubt that the federal courts have ample means to seize such cases, irrespective of the ADR methods which the parties to the underlying disputes may use. On the other hand, there are and will be disputes which lend themselves to local, community-level solutions achieved by means more closely related to the workplace and more closely attuned to the workplace. Congress and the U.S. Supreme Court have recognized this fact, and there appears to be at least a societal acceptance of various forms of ADR as such means. The vast experience and success of the use of ADR methods in the collective bargaining context presents a model for solutions in the at-will workplace. Expansive regulation almost always reaches a point that requires the balanc- ing of societal goals and interests in order to safeguard progress from overreaction and overregulation. It is submitted that in the area of sexual harassment these societal interests include the need to eradicate discrimination, freedom and pri- vacy of individuals in the area of natural human relationships, and the value of a particular job to a particular employee. The U.S. Supreme Court decisions in Faragher and Burlington require a prudent employer to promulgate effective and reasonable rules that promote eradication of discrimination and promote corrective responses to sexual harass- ment problems when they arise. The employer’s motivation to promulgate such rules should be to limit liability and the recognition that a workplace that allows for a quick and local corrective action is going to be a workplace that is more free from discrimination and, therefore, a better and more productive workplace. Employer policies concerning sexual harassment must conform to basic fairness and common-sense requirements. They must be made known to all employees and include a description of prohibited activities and be fairly and evenly administered; they should include the principle of proportionality of penalties; they should provide for a mandatory but as comfortable as possible reporting procedure for the victim of sexual harassment, including the availability of more than one person to whom to report; they must provide for the confiden- tiality of reports; and they should provide for an institutionalized investigation and decision-making process. It is submitted that a reasonable policy cannot be totally influenced by an effort to avoid liability “at any cost.” In other words, a reasonable policy should This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. 728 FITZGIBBON not be “overinclusive,” it should recognize the employees’ rights to freedom and to privacy, and it should minimize any impact on the off-duty lives of employees. The U.S. Supreme Court has defined hostile environment sexual harassment as unwelcome conduct of a severe or pervasive nature. Consequently, in an ordinary workplace a perfectly normal and consensual interaction of a sexual nature should not be within the scope of the policy. And in some states or situations, regulation of some consensual conduct may in fact be illegal.235 One of the pitfalls of a reasonable but detailed policy on sexual harassment for an at-will employer may be the possibility that courts may construe such a policy to constitute a contract, even though it may contain a legalistic disclaimer to the contrary. Consider, for example, a policy that defines prohibited sexual harass- ment to include, among other things, “objectionable remarks” and which provides for discharge for the second offense of sexual harassment. Will the employer, who must apply the policy evenly, want to discharge a valuable employee for the second offense of objectionable, but relatively minor, remarks? After all, the public policy underlying the prohibition of sexual harassment seeks to achieve a workplace free of discrimination and not to discharge employees. Such a provi- sion in the employer’s policy lends itself to disputes: Were the remarks made, were they minor, were they objectionable and, ultimately, did the employer abuse its discretion? Is this a contractual dispute or does the alleged harasser, as an at-will employee, have no recourse against the employer, while, at the same time, the victim may have a statutory claim? If courts construe sexual harassment policies to provide a contractual right to the alleged harasser, then the employer has one more incentive to promulgate a reasonable common-sense policy. The disputes under employers’ sexual harassment policies are likely to fall into two categories. The first category involves disputes between the employer and the victim of sexual harassment. This category incorporates the factual controversy between the alleged harasser and the complainant. This category represents the statutory claims and involves the contested issue of the enforce- ability of an arbitration clause. The second category involves disputes between the employer and the alleged harasser, provided that the employer’s policy provides for resolution of such disputes or courts conclude that the policy represents a contract. The use of any ADR method for resolution of disputes falling into this second category is not controversial. It is the position of this author that utilization of ADR mechanisms and, particularly mediation and arbitration, for resolution of most sexual harassment disputes is to be encouraged because otherwise, many victims will have no practical recourse to the EEOC or the courts, and because today most of these disputes will involve local issues to be evaluated in the context of a particular workplace, under a particular sexual harassment policy—issues which mainly involve facts.236 It is understood that doctrinal arguments against this view exist. However, as a practical matter, the following question should be raised: Given the statistics on EEOC and court filings, will, say, 10,000 local employment disputes 235For example, policies limiting fraternization could violate state “Lawful Off-Duty Conduct Statutes.” See, e.g., New York Labor Law § 201-d. 236 ‘Cole, 105 F.3d at 1486. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly. ARBITRATION AND MEDIATION 729 undergoing local ADR resolution all across the country at the same time, closely connected to the workplace, promote the cause of eradicating harassment from the workplace more or less than the occasional court decision debated by TV commentators? One may speculate that in its emphasis on workplace policies, the U.S. Supreme Court has recognized both the therapeutic and the corrective value of local solutions. This document is copyrighted by the American Psychological Association o r one of its allied publishers. This article is intended solely for the personal use of the individual u ser and is not to be disseminated broadly.

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