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The relationships between an employer and an employee should be professional, respectful, and cooperative.
However, even in an ideal work environment, disputes arise over various aspects of employment relationships.
Employment disputes occur when an employer and employee conflict over crucial issues regarding their professional relationship. That may include discrimination, harassment, wrongful termination, tort claims, contract issues, non-compete agreements, family medical leave, whistleblower issues, confidential information, etc.
Discrimination in the workplace is a clear violation of the U.S. federal laws prohibiting discrimination against an applicant or an employee during hiring, promotions, wages, benefits, and termination. The most influential federal legislation banning discrimination is Title VII of the Civil Rights Act of 1964, which makes illegal discrimination based on race, color, religion, national origin, or sex. It also prohibits retaliation for raising discrimination claims in the workplace.
Harassment in the workplace is unwanted behavior prohibited by federal law that consists in creating a hostile and intimidating work environment. There are different forms of harassment, such as sexual, racial, and other harassment.
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Sexual harassment is the most severe form of workplace harassment aimed at creating a hostile environment at the workplace, including inappropriate sexual remarks or other acts motivated by the victim’s gender. The most common examples are sexually-based comments, unwelcome touching, and sexual advances. The key difference between sexual harassment and other similar behaviors that are not prohibited is the employee’s perception. The victim must feel the behavior is unwanted. The inappropriate behavior does not have to be sexually explicit, but it qualifies for sexual harassment if the victim perceives it as hostile and intimidating. Sexual harassment often occurs when an employer or supervisor requires sexual favor from an employee promising a pay raise, promotion, or other benefits (quid pro quo harassment).
Proving employment dispute allegations in court can be a daunting task. That is especially true in sexual harassment cases. To prove sexual harassment, an employee must demonstrate that the work environment is hostile and intimidating. The adversarial nature of litigation does not allow the victim to express their feelings. It often makes things even worse. Moreover, the traditional court process cannot bring reconciliation between the victim and the perpetrator. Besides, it is ineffective, costly, and time-consuming.
On the other hand, mediation is an alternative dispute resolution method that offers a neutral and confidential approach to resolving contested workplace issues.
Unlike litigation, which often takes years, employment mediation brings mutually beneficial resolutions in weeks or even days.
In meditation, a neutral third party hears the employment claims in a friendly and peaceful environment. The mediator is usually a retired judge or an attorney with rich experience in labor laws, workplace discrimination, sexual harassment, and other employment issues. The parties choose the mediator voluntarily by signing the mediation agreement.
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The mediation procedure is highly confidential. Nothing revealed during the mediation sessions will ever become public. That is particularly important in sexual harassment cases. Confidentiality enables the free flow of information between the parties. They are more likely to express their feelings and concerns when they know that sensitive private information remains within the walls of the session room.
The goal of mediation is to bring reconciliation between the parties in employment disputes. If sexual harassment is involved, the victim and the perpetrator will have the opportunity to overcome resentment and anger and hopefully resume their professional relationship. The mediator is a specially trained person with skills in dealing with miscommunication in highly emotional cases.
The mediator in sexual harassment cases can further bring reconciliation by educating both the perpetrator and the victim about workplace sexual misconduct. An experienced mediator will point to the unacceptability of any sexual connotation in the employment environment.
The process consists of private talks with each party (the co-called caucuses). Both the victim and the perpetrator have the opportunity to express their feelings, worries, and concerns in a completely private and confidential setting. After private sessions, the mediator can estimate the possibility of settlement depending on the perception regarding the dispute. In joint sessions, the parties discuss all contested issues and negotiate the outcome to reach a mutually beneficial settlement. The mediator facilitates negotiations starting from the common ground and bridging the differences between the parties until they settle. In that case, both parties sign a binding agreement, enforceable in court.
Thomas Chase is a certified mediator in Florida with years of experience dealing with employment disputes. Mr. Chase possesses knowledge of applicable labor laws and has sophisticated skills in mediating workplace discrimination, sexual harassment, and other employment claims.