Rothman Gordon: ADR Update Outline

ADR Update Outline

Prepared originally for Sterling Education's Employment Law Update, March 9, 2003 in Pittsburgh

There is More to ADR than Arbitration
1. Alternative Dispute Resolution ("ADR") Generally
  1. Alternative Dispute Resolution refers to different methods of resolving disputes between parties without going to trial. ADR refers to a broad category of "ADR Processes", a body of law, particularly mandatory binding arbitration, which continues to develop. The processes follow along a continuum of voluntariness and procedural strictness.
2. ADR in Non-Union Context
  1. Private Out-of-Court Processes
    1. Open Door/Internal Complaint System
      1. This process is the most voluntary in nature of all ADR processes and reflects little cost to the employer. Anyone with a grievance is given an opportunity to express that grievance through established internal procedures in effect within the company/organization. This process is often used to evaluate conflicts to determine whether they can be handled directly by the employer or should be referred to another process to which the employer and employee are already bound. This type of ADR often can be used to prevent small conflicts from escalating.
    2. Omsbudman
      1. A neutral and independent party whose job is to assist the public, employees and those served by the institutions to help resolve problems, concerns and complaints through counseling, investigating and mediating when needed. This process is typically invoked within a corporate or university setting.
    3. Negotiation
      1. Voluntary cooperative process where parties bargain, confer, discuss and attempt to persuade each other in an effort to resolve their differences without the intervention of a third party. Negotiation does not have a specific procedure or form, and there is no requirement for a settlement.
    4. Mediation
      1. This facilitative process is confidential, private, voluntary, informal and non-binding. The neutral mediator tries to help the parties reach a mutual resolution. The mediator does not make decisions or impose solutions. Instead, he tries to encourage communication, overcome barriers to communication, narrow the issues and identify creative options that the parties may not have thought of themselves. Mediation is most often used early in the dispute. The mediator usually continues until resolution or failure. Typically, the process lasts for a day or less.
    5. Neutral Fact Finder
      1. A private and confidential process where a neutral person is presented with each party's case. The neutral evaluator often has specialized information regarding the legal or factual nature of the dispute. After hearing the case, the neutral evaluator presents an advisory opinion of the case. The neutral evaluator is usually more proactive than a mediator by presenting both the strengths and weaknesses of each party's case.
    6. Med-Arb
      1. A two-step process that combines mediation and arbitration. The parties begin with mediation with the understanding that the conflict will proceed immediately to arbitration if a resolution is not made. In this model, the mediator becomes the arbitrator when no settlement is reached. The neutral is not supposed to use confidential information gained as a mediator when engaged in the arbitration phase.
    7. Arbitration
      1. Adjudicatory and adversarial process overseen by one or more voluntarily selected persons. The arbitrator or arbitrators hear the dispute and then make a decision. Arbitration is usually binding, depending on the agreement between the parties. Where arbitration is binding, the scope of review by courts is very limited, and the courts have the power to compel parties to attend mandatory arbitration. Finality of a determination often makes it speedier, less expensive, more private and less formal than litigation. Arbitration is most like litigation in nature and form.
      2. Models
        
        Traditional : Arbitrator or panel makes an award which is binding on the parties. The arbitrator/panel is most often the fact finder and decision maker. The arbitrator/panel is bound by the terms of the arbitration agreement as to procedure of the proceeding. Most typical model of arbitration.
        
        High-Low : Arbitrator/Panel is limited to a maximum and a minimum award as suggested by the parties. The benefit of this model is the limitation of risk to both parties. The employee is guaranteed a minimum outcome and the employer is guaranteed a maximum of risk. The neutral may award any amount within these parameters.
        
        Baseball/Last Best Offer: Parties submit their respective last best offers to the arbitrator. After hearing the case, the arbitrator chooses one offer or the other. This model forces the parties to be realistic in their offers. Strongly encourages pre-dispute settlement.
        
        Night Baseball: This model is the same as the baseball/last best offer model; however, the arbitrator makes a decision without knowing what the parties have suggested as their last best offer. The arbitrator then chooses the last best offer most similar to his own.
  2. ADR Under Administrative Agency Auspices
    1. Since 1999, the EEOC through a voluntary mediation program, has mediated more than 50,000 disputes. About 70% of these mediations were successfully resolved in an average time of 85 days. This represents half the amount of time it usually takes for the EEOC to resolve a charge through the investigatory process. Despite the success of the program, many employers choose not to participate for the following reasons: 1) concern that the mediator is an EEOC employee and not neutral; 2) that the employee did not have a case against the employer; and 3) the belief that settlement would require a monetary settlement.
  3. ADR Under Court Auspices
    1. Judicial Settlement Conference
      1. A judge or court appointed individual attempts to facilitate a settlement in an effort to eliminate pending litigation. The neutral brings the actual and persuasive authority of the court with him/her. The neutral can give informed opinions about how the case might be decided at trial and may even provide the parties with a recommended settlement figure. Parties may be required to bring their client or settlement authority with them.
    2. Court Annexed Arbitration
      1. Submission of litigation to an arbitrator/panel for decision making. Generally involves disputes of lesser values and includes a right to appeal with trial de novo.
    3. Summary Jury Trial
      1. A non-binding and informal process in which mock jurors hear an abbreviated version of the case put on by the parties. Less strict evidentiary rules are often used to expedite the case. A judge usually presides. At the conclusion of the case, the jurors are given a jury instruction and return with an advisory verdict. This ADR process gives the parties realistic expectations of what would happen at trial and are often settled thereafter.
      2. In Pennsylvania, this process is permitted by Pa.R.C.P. 212, which provides, "In any action the court, on its own motion or on motion of any party, may direct the attorneys for the parties to appear for a conference to consider: (f) Such other matters as may aid in the disposition of the action." See Twitty v. Minnesota Mining & Mfg. Co., 16 Pa. D. & C.4 458 (Ct. C. Pleas. Phil. 1993).
      3. Twitty v. Minnesota Mining & Mfg. Co. involved a silicosis case that had been before the presiding judge for several years. In the interest of time and resources, the judge suggested and ordered a summary jury trial. At the time there were no objections. Over one month later with complete arrangements for the proceeding having been made, one party asked to cancel the summary jury trial. The judge denied the request as untimely under the circumstances.
        
        The Court of Common Pleas found that the court's order of a summary jury trial was valid under the broad Pa.R.C.P. 212 and because summary jury trials are permitted and provided for in other areas of Pennsylvania law, such as actions in equity, Pa.R.C.P. 1513, and probate actions, pursuant to 20 Pa.C.S./777(c). Further, the court recognized the national acceptance and use of summary jury trials as a method of dispute resolution.
3. ADR in the Union Context
  1. Processes to Reach a CBA
    1. Negotiation
      1. First step in the collective bargaining process that leads to a labor contract. Parties attempt to create an agreement amenable to both parties.
    2. Mediation
      1. Specifically geared towards resolving issues in the collective bargaining agreement negotiating process where there appears to be an impasse. Parties attempt to resolve their conflict with the help of a mediator. The process is usually initiated at the request of one or both parties.
    3. Fact Finding
      1. Specifically geared towards resolving issues in the collective bargaining agreement negotiating process where there appears to be an impasse. The fact finder has broader powers than a mediator and may present the parties with the respective strengths and weaknesses of their cases.
    4. Arbitration
      1. Advisory Arbitration
        
        A system under which an arbitrator is selected to render an award which recommends a solution to the dispute, which is not binding on the parties. Advisory arbitration is most frequently used in public employment, often to help resolve bargaining impasses.
      2. Interest Arbitration
        
        The arbitration of the terms of a collective bargaining agreement. When contract negotiations reach impasse and cannot be resolved through bargaining or other ADR processes, the issues in dispute may be submitted to voluntary arbitration, or in some statutory contexts, mandatory arbitration. In Pennsylvania, this type of arbitration is required for policemen and firemen.
      3. Strike/Lockout
        
        These measures are ways in which parties can bring economic pressure in favor of their bargaining positions to try to resolve issues leading to a collective bargaining agreement.
  2. Processes for Resolving Disputes Under a Collective Bargaining Agreement
    1. Grievance Procedure
      1. A complaint process established by the collective bargaining agreement for the handling of complaints made by or on behalf of employees against the employer or on behalf of the employer against the Union. The grievance procedure is used to address a complaint without interrupting business or the employee's employment. Procedural steps vary from agreement to agreement.
    2. Grievance Med
      1. A mediator seeks to help the parties resolve grievances without resorting to arbitration. If settlement is not achieved, the mediator can give the parties an on-the-spot oral opinion as to how the grievance is likely to be decided if it goes to arbitration. Where parties do not accept the mediator's advisory opinion, they are free to arbitrate, and the information disclosed at the mediation remains confidential.
    3. Arbitration
      1. Binding Arbitration
        
        Arbitration where arbitrator's award is final and binding upon both parties.
4. Legal Basis for ADR Processes
  1. Private Agreements to Arbitrate
    1. Federal Arbitration Act ("FAA")
      1. Federal law which provides a statutory basis for the enforceability of arbitration agreements where interstate commerce is implicated.
      2. The FAA, "preempts state laws which require a judicial forum for a resolution of claims which the contracting parties agreed to resolve in arbitration."
    2. Supreme Court Cases Relating to FAA and Employment
      1. Gilmer v. Interstate/Johnson Lane Corp.
        
        Holding/Analysis: The Supreme Court enforced a pre-dispute arbitration agreement contained in a securities registration application (as opposed to an employment contract, employment application or employee handbook).
        
        The agreement at issue was found to be sufficient to bar the employee from seeking relief from the court system and limited the employee to the arbitral forum. The Supreme Court found that the employee did not give up any substantive rights but only substituted the forum. This was supported by the fact that there was no evidence that the ADEA was meant to preclude arbitration. Further, the obligation to arbitrate did not bar the EEOC from pursuing the case on behalf of the public interest and the employee.
      2. Circuit City, Inc. v. Adams
        
        Holding/Analysis: A provision in the employee's application for work at employer Circuit City contained a clause that stated that all employment disputes were to be settled by arbitration. After two years of employment at Circuit City, the employee filed discrimination claims against the employer in state court. The employer sought to compel arbitration. The district court granted the motion to compel arbitration. On appeal, the Ninth Circuit held that the FAA did not apply to contracts of employment and reversed. The Supreme Court held that the FAA applies to all employment contracts, except those relating to transportation workers.
    3. Third Circuit Approach to Validity of Arbitration Agreements
      1. The federal policy encouraging recourse to arbitration requires federal courts to look first to the relevant state law of contract in deciding whether an arbitration agreement is valid under the FAA.
    4. Pennsylvania Statutory Basis for Arbitration Agreements
      1. The PA Uniform Arbitration Act parallels the FAA and applies where referenced in the arbitration agreement or under Pennsylvania common law. This Act, like the FAA, creates a presumption of enforceability.
    5. Scope of Review of Arbitration Agreements in Pennsylvania
      1. Scope of Review Under the FAA
        
        Under the FAA, the validity of an award is subject to attack only on those grounds listed in 9 U.S.C. / 10 and the policy of the FAA requires that an award be enforced unless one of those grounds is affirmatively shown to exist.
      2. Scope of Review Under the Uniform Arbitration Act ("UAA")
        
        Under statutory arbitration in Pennsylvania, as set forth in the Uniform Arbitration Act, there is broader judicial review of an arbitration award. A court will vacate or modify the arbitration award on several additional grounds: evident partiality by an arbitrator appointed as a neutral, corruption or misconduct by any of the arbitrators and prejudicing the rights of any party; or the arbitrators exceeding their powers. Arbitration agreements under Pennsylvania law must "expressly provide" that cases will be arbitrated under the UAA. Where the agreement is ambiguous as to this term, the agreement is arbitrated under the common law.
      3. Scope of Review Under the Common Law
        
        Under the common law of Pennsylvania, "[t]he award of an arbitrator...is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award." Under this law, a court applying Pennsylvania law will not review a common law arbitration award on the basis of error of law or fact by the arbitrator. The differences between arbitration agreements under the FAA, UAA and common law arbitration become relevant in drafting an arbitration agreement with the narrowest scope of review possible. Pennsylvania common law arbitration provides the narrowest scope of review.
  2. Legal Basis of ADR in the Union Context
    1. National Labor Relations Act ("NLRA")
      1. Applies to all employers and unions engaged in interstate commerce who are not covered by an otherwise specialized statute. This Act applies to most privately employed unionized employees and their employers.
    2. Railway Labor Act
      1. Applies to "carriers" subject to the Interstate Commerce Act and their employees. The applies primarily to railroads and airlines.
    3. Pennsylvania Public Employee Relations Act (Act 195)
      1. Applies to public employers and public employees as defined in the Act. Includes court employees, state employees, city employees, prison guards, etc.
    4. Pennsylvania Act 111
      1. Applies to police and firemen employed by a political subdivision of the Commonwealth or by the Commonwealth through a labor union designated by fifty percent or more of such policemen or firemen.
    5. Act 88
      1. Applies to teachers specifically and creates procedures for resolution of impasses, which supercede those in Act 195.
  3. Legal Basis of Enforcement of Arbitration Agreements and Awards
    1. Steelworker Trilogy
      1. The Steelworker Trilogy is comprised of three landmark labor union cases decided by the Supreme Court that, read together, protected grievance arbitration in the collective bargaining agreement setting.
      2. USWA v. Warrior & Gulf Navigation Co.
        
        The issue before the Supreme Court was whether a management rights clause was substantively arbitrable. Although the Court recognized that this was an issue for the courts, the Court also announced a presumption of arbitrability. "An order to arbitrate the particular grievances should not be denied unless it can be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."
      3. USWA v. American Mfg. Co.
        
        The issue before the Supreme Court was judicial intervention into the merits of the grievance prior to its submission to arbitration. This case rejected the Culter-Hammer doctrine, which provided that the Court would deny arbitration when the "meaning for the provision of the contract sought to be arbitrated" was found to be "beyond dispute." The Supreme Court held that even frivolous cases could be arbitrated if the subject matter was arbitrable. "Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator."
      4. USWA v. Enterprise Wheel & Car Corp.
        
        The Supreme Court considered the issue of judicial review of an arbitrator's award. The Court stated a courts had no power to reject an arbitrator's judgment simply because it disagreed with the judgment. The labor arbitrator's source of law may include not only the collective bargaining agreement but also the industrial common law.
Will an ADR Agreement Withstand Challenges in Court?
1. Validity of Arbitration Agreement Outside the Labor Union Setting
  1. Third Circuit Standard
    1. The Court in Seus v. John Nuveen & Co. held that "nothing short of a showing of fraud, duress, mistake or some other ground recognized by law applicable to contracts generally" would render an arbitration clause in an employment contract unenforceable.
  2. Grounds for Unenforceability
    1. Unconscionability
      1. Alexander v. Anthony International, L.P.
        
        Holding/Analysis: The Court held that an arbitration agreement that allowed only 30 days to file claims, restricted relief available to employees, and required the losing party to pay for the arbitrator's fees and expenses unreasonably favored the employer. This arbitration agreement was deemed unconscionable and unenforceable where the hourly workers were presented with the "hourly employee contract" and had no real opportunity to negotiate out the numerous provisions. Severability of the offending agreement under Spinetti was deemed inappropriate where there were too many "draconian" terms imposed on the workers.
    2. Lack of Informed Consent
      1. Hamilton v. Travelers Prop. & Cas. Corp.
        
        Holding/Analysis: The Court held that where an employee received a copy of the employee handbook that contained an arbitration agreement and where the employee continued employment for two years following the receipt of the handbook, the employee was presumed to have accepted the employer arbitration agreement.
    3. Unfairness of Agreement/Insufficiency of Remedies
      1. Great Western Mortgage Corp. v. Peacock
        
        Holding/Analysis: Employee applied for a position with Great Western Mortgage. As part of the application process, the employee was required to sign a form agreeing to submit any employment-related claim to arbitration. After beginning work, she received a more detailed form describing the arbitration procedures and the types of claims covered. The employee later sued the employer on sexual harassment claims under New Jersey discrimination law. The employer sought to compel the employee to arbitrate the claim. The motion to compel arbitration was granted, and the employee appealed arguing that she was coerced into signing the agreement that New Jersey public policy prevented enforcement of the agreement where the state antidiscrimination laws conflicted with some of the arbitration procedure and that the employer waived its right to arbitration by failing to timely submit the case to arbitration.
        
        The Third Circuit rejected each of these arguments. The employee was not coerced where there was merely a disparity in the bargaining power of the parties. More is needed to show coercion where the employee was an educated person who had agreed expressly or implicitly to the arbitration agreement on three separate occasions.
        
        The Court stated that challenges to arbitration agreements that provide shorter limitation periods must first be argued in arbitration. Once a court finds a dispute arbitrable, all other issues are to be decided at arbitration.
        
        An arbitration agreement that involves a waiver of substantive rights created by a state statute must be presented to the arbitrator. It is up to the arbitrator to determine "the validity and unenforceability of the waiver of asserted state court rights."
        
        Finally, the Court found that the employer did not waive its right to compel arbitration. The burden of proof to show waiver is very high and the factors required were not present in this case.
      2. Excessive Arbitrator's Fees and Expenses
        
        Green Tree Financial Corp-Ala. v. Randolph
        
        Holding/Analysis: The Supreme Court held that the absence of cost allocation provisions to protect the plaintiff from paying fees and costs does not necessarily render the arbitration agreement unenforceable. The Court promoted an individualized inquiry into the agreement and situation of the parties. The Court recognized that excessive arbitration costs could burden a litigant to the extent that he/she is denied his statutory rights when the cost of arbitration is too much to bear. However, the bare risk of prohibitive costs was not enough to invalidate the agreement. There must be proof of actual prohibitive costs. This case is not an employment case and involved a consumer credit issue; however its analysis has been adopted by Blair v. Scott Specialty Gases, Inc.
        
        Blair v. Scott Specialty Gases, Inc.
        
        Holding/Analysis: The court considered whether an arbitration agreement in an employment context that required an employee to pay half of the arbitration costs rendered the clause unenforceable. The court remanded the case for discovery on the actual costs of arbitration to determine whether the costs would be prohibitive for the employee.
  3. Severability of Unenforceable Provisions
    1. In the context of restrictive covenants, "[c]ase law empowers Pennsylvania courts to grant partial enforcement of an overbroad covenant either by excising offensive portions of the covenant or by adding language." This provides the state law contract basis to sever unenforceable provisions. Unenforceability provisions of the First and Second Restatement of Contracts / 603 and 184 have been adopted by Pennsylvania courts. Only if the primary purpose or an essential part of the bargain is illegal, will the entire contract be invalidated.
    2. Spinetti v. Service Corp. International
      1. Holding/Analysis: Spinetti began working for Service Corp. in 1989. In 1997, the employee was presented with a new personnel policy that included an arbitration agreement. After signing the document, the employee's employment was terminated in 2000. The employee subsequently filed a discrimination claim against the employer, who then filed a motion to compel the claims to arbitration. The court below voided a portion of an arbitration agreement between an employee and employer as it related to attorney's fees and arbitration costs provisions. The issue before the Third Circuit was whether the severing of that portion of the agreement was a basis to invalidate the entire arbitration agreement.
        
        The Third Circuit found that although a fee-splitting provision for the expenses of arbitration may be unenforceable, one such unenforceable provision does not render the entire agreement void. Under Pennsylvania law, arbitration fees and costs are not essential terms of the whole agreement, because they are not the primary purpose of the agreement. Therefore, Pennsylvania law permits the enforcement of the non-offending portions of the arbitration agreement.
  4. Administrative Agencies' Right to Proceed Where Valid Arbitration Agreement Exists
    1. EEOC v. Waffle House, Inc.
      1. Holding/Analysis: Employee was terminated from his position as a grill operator at a Waffle House restaurant. Employee filed a discrimination complaint with the EEOC. EEOC made a finding of probable cause and proceeded to demand injunctive and specific relief from the employer. The employer filed a motion to stay the EEOC's action and also sought to compel arbitration on the issue, based on the general language of the arbitration agreement.
        
        Where there was a private arbitration agreement between the employer and employee that required the employee to arbitrate all employment related claims, the agreement did not bar the EEOC from pursuing victim-specific relief in court on behalf of the employee.
2. Can an agreement to arbitrate in a collective bargaining agreement function to waive the rights of a union employee to his/her judicial forum regarding individual employee rights issues?
  1. Alexander v. Gardner-Denver Co.
    1. Holding/Analysis: An African American union employee alleged that he was improperly discharged because of his race. The employee filed a union grievance as well as an action in federal court under Title VII. The grievance was processed through binding arbitration. The arbitrator found that the employee's discharge was for just cause without discussing the claim of racial discrimination. The employer moved for summary judgment on the Title VII action. The motion was granted and affirmed.
      
      The Supreme Court held that an employee does not forfeit his or her private cause of action under Title VII by first pursuing binding arbitration of a union grievance. The Supreme Court stated that contractual rights granted to unions under the collective bargaining agreements and the individual rights granted to employees under federal statutes are distinctly separate.
    2. Alexander Extended
      1. The Supreme Court in Barrentine v. Arkansas-Best Freight Systems, Inc. extended the Alexander rationale to encompass claims brought under the Fair Labor Standards Act ("FLSA") and / 1983 claims. The employee was not precluded from subsequently litigating a claim after mandatory binding arbitration.
      2. Wright v. Universal Maritime Service Corp.
        
        Holding/Analysis: The Supreme Court considered whether a general arbitration clause in a collective bargaining agreement required an employee to submit his ADA claim to arbitration. Here there arbitration clause did not contain a waiver of employees' rights.
        
        Where the arbitration language bound the parties to arbitrate "all matters affecting wages, hours, and other terms and conditions of employment," there was no clear and unmistakable waiver of the employee's rights to a judicial forum for a deferral employment discrimination claim. The Court did not rule as to whether all union employees under a valid arbitration agreement give up their right to a judicial forum under a federal statutory law. The Court found it "unnecessary to resolve the question of the validity of a union-negotiated waiver [of employee individual rights], since it [was apparent in this case] that no such waiver occurred." The Court stated that such a waiver had to be "clear and unmistakable." Even after Wright, it is unclear whether the FAA is applicable to collective bargaining agreements.
Is ADR a Preferable Alternative to a Jury Trial?
1. Open Door/Grievance Procedure
  1. Employer
    1. Pro: It can be cost effective and can prevent small conflicts from escalating where the early warning signs are addressed and handled properly. To avoid liability for illegal harassment, employers are strongly advised to put in place, as an absolute minimum, comprehensive investigative procedures through which employees can report perceived illegal harassment, especially in light of cases such as Faragher and Ellerth.
      1. Supervisor Harassment: Faragher and Ellerth are the two leading cases on the subject of employer liability for unlawful supervisory harassment in the workplace. The Supreme Court held that "an employer can be 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; however, "no affirmative defense is available...when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."
        
        Faragher/Ellerth Affirmative Defense: An employer may raise an affirmative defense to liability when harassment by a supervisor does not culminate in a tangible employment action. The affirmative defense requires proof of two elements:
        
        that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and
        
        that the plaintiff employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer or to avoid harm otherwise.
      2. Coworker Harassment: Although the Supreme Court has imposed vicarious liability on employers for supervisor harassment, liability for coworker harassment is based on employer negligence, recklessness or negligent failure to take remedial action upon notice of the harassment. To recover for coworker harassment, a plaintiff must show that the employer was negligent in that it knew or should have known of the charged sexual harassment and failed unreasonably to take prompt and appropriate corrective action.
      3. Harassment by Third Parties: An employer may be responsible for the hostile work environment harassment of employees by non-employees, when it knows or should have known (through supervisory agents) of such actions and fails to take corrective action. The extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees is the key to evaluating its responsibility for such acts.
      4. It is important that an employer recognize that harassment based on a protected characteristic, such as sex, need not be sexual in content to be sexual harassment. "[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex." For example, a female may be harassed in a way that uses sex-specific and derogatory terms and which makes clear that the harasser is motivated by general hostility to the presence of women in the workplace. It may also be relevant to examine how the alleged harasser treats members of both sexes in the workplace.
      5. Every employer should create, publish and effectively distribute to all employees a policy describing and forbidding all forms of unlawful harassment, as well as retaliation against employees who report harassment. The policy should include a definition of harassment, examples of prohibited behavior, a description of who the policy applies to, a complaint procedure, assurances of complainant's protection, what disciplinary action the harasser will face if found to have violated the policy and should require, or at least encourage, anyone who witnesses or experiences behavior in violation of the policy to report such conduct. The statement should also advise the employee that all reports of harassment will be investigated and that disclosures will be made only to the extent necessary to investigate and resolve the problem, or as required by law.
        
        The procedure should provide that an employee may report a violation of the policy to an individual outside of the employee's chain of command who has the authority to resolve, or to recommend a resolution of, the problem. Providing an employee with individuals outside of her chain of command is necessary in the event that it is her supervisor that is the harasser. Once the policy has been created the employer should broadly disseminate it throughout the workforce.
        
        When becoming aware of a complaint of unlawful harassment, the employer should respond both promptly and effectively to each and every complaint. This includes conducting a proper investigation that is designed to discover the truth so that any violation of the policy can be remedied. Investigators must be impartial, properly trained and preserve all evidence confidentially, to the extent feasible. Employers should be careful in selecting and training personnel designated to receive and respond to reports of harassment, as when a person designated by the employer to receive such reports learns of the harassment, knowledge of the harassment is imputed to the employer even if the person to whom the report was made fails to follow through with her responsibility to report it further or to take action on the complaint.
        
        It may be necessary to take intermediate action while the investigation is proceeding to ensure that further harassment does not occur such as separating the alleged harasser and the victim. Remedial measures should be designed to stop the harassment and correct its effects on the employee. The severity of the discipline should depend on the severity and frequency of the harassment, prior complaints and/or the quality of the evidence. Take action to prevent retaliation against the complaining employee, such as oversight of future employment decisions or removing the harasser from the victim's workplace.
    2. Con: Supervisors/managers must be trained to not mishandle cases or illegally retaliate.
  2. Employee
    1. Pro: Conflicts that are promptly brought to the attention of management may be addressed efficiently. Even where the employer is unresponsive, the act of informing the employer of a conflict puts him/her on notice of the problem, which can be helpful in "building a case" for more adversarial processes.
    2. Con: Where employees do not perceive this open door/grievance procedure as fair, the procedure may be ignored and be ineffective.
2. Mediation
  1. Employer
    1. Pro: In comparison with litigation, this process can be inexpensive, rapid and the settlement rate in voluntary mediation is very high.
    2. Con: Is a waste of time and resources when there is not a mutual strong drive to settle.
  2. Employee
    1. Pro: In comparison with litigation, this process can be inexpensive, rapid and the settlement rate in voluntary mediation is very high.
    2. Con: Is a waste of time and resources when there is not a mutual strong drive to settle.
3. Arbitration
  1. 1. Employer
    1. Pro: Mandatory arbitration can keep disputes out of court and out of the hands of jurors. The employer is generally the party who proposes or imposes arbitration agreements on employees and so employers have the power to craft the agreements in the way that will be most beneficial to them. Generally faster and less expensive than court litigation. The process is private.
    2. Con: Adversarial with a clear "winner" and "loser."
  2. Employee
    1. Pro: Arbitration is generally faster and less expensive than court litigation and is private.
    2. Con: Adversarial with a clear "winner" and "loser." Employee may feel disadvantaged if he or she cannot make emotional appeals to a jury. Generally has more limited discovery.