Mediating Workplace Sexual Harassment: The Road Less Taken

Sexual harassment claims continue to be the hot topic of discussion in all the workplaces alike. In the wake of the #metoo campaigns, the discussion around effective management of workplace sexual harassment claims has gathered more momentum. A claim of workplace sexual harassment involves more than two parties: the complainant, the alleged harasser and the employer, each bringing different interests to the table. However, one common factor that all fear is the hideousness of these claims. 

The standard recourse that most organizations provide for sexual harassment claims includes a formal investigation into the matter. Needless to say, such measures come with their own baggage. On one hand these investigations and consequent legal battles leave the organization financially drained, with a scar on their reputation and on the other hand, they subject the complainant and alleged harasser to stigmatization of the society. Studies also show that the complainants’ fear of retaliation and humiliation most often result in underreporting of the cases and may even lead to the complainant quitting their jobs. A comprehensive study conducted by the EEOC’s select task force in 2016 stated that up to 70% of the instances of sex-based harassment were never formally reported. 

The list of shortcomings engendered in the formal redressal of sexual harassment cases is long and thus, begs us to consider some alternatives to redress these issues. Over the past few years, mediation has gained popularity as an alternative, informal mode to redress claims of sexual harassment at workplace. It is a common misconception that introducing mediation as a method to resolve sexual harassment cases would leave the complainant with no formal recourse. In fact, mediation aims to be an ally in this regard and not a substitute. It is a practice in several organizations that the complainant be asked to choose whether to address their claim via informal methods or file a formal complaint. At this point, it is imperative to clarify that choosing informal resolution does not mean that the formal option would no longer be available. Should the complainant opt for mediation early on and fail to reach a resolution, s/he can always file a formal complaint as per the company’s policies or other regulations in place. 

Mediating sexual harassment cases can have some obvious advantages. Some of them are discussed here: 

ADVANTAGES OF MEDIATING SEXUAL HARASSMENT CASES

1. Confidentiality: One of the most pivotal attributes of the mediation process is its confidential nature. The disputes addressed, issues raised and information disclosed in a mediation setting remain strictly confidential. It is often seen that a claim of workplace sexual harassment and the consequent investigation causes a disruption in the workplace. It does significant damage to the reputation of the alleged harasser and at the same time, opens doors for potential retaliation and shame-culture for the complainant. With this background, it is important to note that mediation could provide a comfortable, confidential setting for all parties to voice their concerns without the fear of judgment or retaliation from their peers or supervisors. Additionally, in a situation where a frivolous claim has been made, the confidential setting of the mediation process could ensure that the reputation of the alleged harasser is not compromised, which could often be the deciding factor between the person keeping or quitting their job.
    
2. Neutrality: Neutrality and independence of the mediator are other key attributes of a mediation process which reassure the parties to actively participate in the mediation process with an open mind and without fear of any negative consequences. As suggested by various studies, it is common that employees in an organization may not feel comfortable reporting sexual harassment cases to the HR. Afterall, the HR works for the management, and in cases where a complaint is against a senior professional of the organization, the neutrality of the HR could be a big concern. Mediation could thus be a safety net to deal with such concerns as well.
    
3. Complainant’s control: Mediation is a parties’ process; the decision-making authority in a mediation lies with the parties. While mediating workplace sexual harassment, the complainants exercise control over the outcome of the process, something that is missing in the formal processes. Additionally, it is empowering when the complainant gets to choose how they wish to resolve their concerns, either formally or informally.
   It has been reported that several complainants in sexual harassment cases primarily want the behaviour to stop, and mediation can provide an ideal setting to achieve the primary aim. Under no circumstances would the formal investigative processes endeavour to address the complainant’s concerns in a manner that they would like. It is thus important to highlight the voluntary and empowering nature of the mediation process and how it could benefit all the stakeholders if such a claim is brought to attention, and also, encourage higher reporting of such incidents.  
    
4. Flexibility: Mediation offers flexibility both in process and substance. Confrontation could often be challenging for the complainant in a sexual harassment case and the ensuing investigative processes can be a nightmare. With the flexibility in the mediation process, the mediator could speak to the parties in private caucuses. Additionally, in cases with significant power imbalance or where the mediator feels that a formal complaint is needed, s/he may end the mediation at any time and the complainant may then seek a formal investigation.
   Most sexual harassment cases, if formally investigated, would end in up in two possible outcomes. It would either lead to dismissal of the complaint on grounds of insufficiency of evidence or its frivolity thereof or it would lead to a disciplinary action against the harasser (possibly their dismissal from the job) if the claims are founded. Whatever be the outcome, the fact that formal investigations remain disruptive in nature cannot be debated. They often leave the employers struggling to determine the credibility of two valuable employees of the organization. In this setting, mediation holds the potential for flexible outcomes which could range from changes in work settings to minimize contact between the two parties, compensation to the complainant, reprimand or disciplinary actions against the harasser etc. Most importantly, it provides a setting for the alleged harasser to understand the impact of their actions, which is highly likely to deter them from displaying similar conduct again.   

THE INDIAN PERSPECTIVE 

With the enactment of The Sexual Harassment of Women at Workplace Prevention, Prohibition, and Redressal Act of 2013 (the Act), all organizations having ten or more employees are mandated under the law to have an Internal Complaints Committee (ICC). The ICC’s primary role is to investigate and address complaints of workplace sexual harassment against women. The Act under its provisions (Section 11) explicitly recognizes the possibility of conciliation (in the Indian context, conciliation and mediation are used alternatively) and recommends that it be adopted as the first step.

In practice, the Act has shown little promise. The recourse provided under the Act via ICC is only limited to claims filed by women. The Act fails to recognize that men too (regardless of the extent of it) could experience sexual harassment at work. Further, studies suggest complainants’ dissatisfaction with the process. As high as 66% of the complainants said that the committees did not deal with the complaints fairly and up to 50% of women who experienced sexual harassment left their jobs or switched careers. 

The positive aspects of mediating sexual harassment disputes are significant. Mediation has an untapped potential to change the way in which workplace sexual harassment cases are dealt. It could encourage reporting of cases, cause least disruption to the workplace and also, increase satisfaction among the parties to the process. The challenge, however, remains: to bust the myths about mediating such disputes and reinforce the informal system of conflict resolution across organizations. 

                       

Bhavya Mahajan

Bhavya Mahajan is a lawyer and mediator based in India. She works as the Case Manager at the Mumbai Centre for International Arbitration (India). She holds an LL.M in Dispute Resolution from Pepperdine Caruso School of Law and is a Member of the United Nations Multilateral Working Group at Mediators Beyond… MORE >