Sexual Harassment Mediation
Sexual Harassment Mediation
Sexual Harassment Mediation
Having decades of experience consulting with Plaintiffs and Defendants and litigating sexual harassment cases leads me to one conclusion if you do not understand the body of law or how to evaluate the case, you’re not the right mediator to mediate a sexual harassment matter.
The extremes that I have been privy to over the years through being involved in complaints of sexual harassment have taught me that what is or is not offensive runs a full gamut of conduct.
Examples of prohibited conduct in the workplace include but is not limited to, lewd or sexually suggestive comments, off color language or jokes of a sexual nature, slurs and other verbal, graphic or physical conduct relating to an individuals’ sex, or display of sexually explicit photograph or film, greeting cards, articles, books, magazines, drawings, electronic communication or any unwelcome touching.
Story time: (All mediators should be good in telling stories)
There was an opening for a C.E.O of a large company and the three Board of Directors and the President of the company meet to interview five candidates for the position with the most qualified being first. The President of the company asked the other directors if he could ask the questions of the candidates without interruption from the other directors. Since the President was the majority stockholder all agreed. The first candidate came in and the President asked one question. “What is chocolate pudding?” The candidate was stunned but gained his composure and said “It is brown in color, sweet, with a pudding like consistency and generally served in 4-ounce portions as a treat or dessert. “Thank you,” said the President, you may leave and please tell the next candidate to come in. The Board of Directors thought the President has gone bonkers. The second candidate arrived, the President asked the same question and received substantially the same answer.
Then the third candidate arrived, same question. “What is chocolate pudding?” The third candidate thought for moment removed his cell phone from his pocket and asked to google “Google how do you make chocolate pudding for four,” at which time google repeated the recipe to make chocolate pudding for four. “Gentlemen”, the third candidate said, “that is chocolate pudding.” Unanimously, the third candidate was voted the new C.E.O.
The recipe for what sets a sexual harassment case in motion
On a scale of case evaluation and settlement potential ranging from a leer to forceful sexual intercourse the follow are some examples of conduct which at the very least could cause costly litigation or at the very worst financial disaster for an employer and in the case of tactual activity to the perpetrator as well. For illustrative purposes, although not always the case, we will assume the female is the offended party: (being politically correct the use of the words “he,” “him,” “she” or “her” may be substituted for each other)
- Visual:
- He is constantly leering at me in a perverted way.
- He constantly stares at my breasts and rear-end.
- Written/Gift giving:
- He sends me cards with language and pictures which are sexually suggestive.
- He sends me emails suggesting we should date.
- He keeps sending me skimpy underwear.
- He sent me a sex toy.
- He sent me a picture of himself nude.
- He sent me an email telling me he wants to have sex with me.
- Verbal:
- He keeps telling me I have a beautiful body
- He keeps telling me we should go away for a week-end.
- He told me that he is a great lover and wants to go to bed with me.
- He tells me that he can help me advance at work if we are intimate.
- He tells me that if I reject him sexually he may have to watch my work more carefully.
- Tactual:
- He is constantly kissing me on the check when we meet.
- He is constantly hugging me tightly when we meet.
- He constantly brushes into me in narrow hallways.
- He constantly rubs my shoulders and neck as if to massage me.
- He constantly pats me on the rear end.
- He grouped my rear end.
- He kissed me on the lips
- He grouped my breast.
- He placed his hand on my vagina.
- He told me to come to his room, so he could discuss the business activities of the following day but instead he threw me on the bed and forcibly had sex with me.
The type of conduct and the frequency of the conduct all play a part in the evaluation of a sexual harassment case and the determination whether the facts will make it to a final adjudication.
The above is only a snapshot of what is or is not sexual harassment and without many years of experience in employment law and actually dealing with real problems in the area of sexual harassment it is difficult if not impossible to understand the recipe as to what is or is not sexual harassment and if there is sexual harassment the value of the case.