Using Mediation Over An Employment Discrimination Lawsuit – Arizona

Picture this situation: An employee in Arizona receives her first disciplinary action. She is angry and concerned about what this means for her future job outlook with the company. Then, she gets upset– she can think of two other employees who did what she did without receiving any type of written warning.  She wonders why she is being treated differently than the others. Is it because of the color of her skin? Could it be because she is a woman? She remembers that one manager who previously told the joke about women being not as intelligent as men. She goes to the human resources department to file a formal written complaint.

What should  this Arizona employer’s next step be in dealing with this employees complaint?

Scenario 1:
After the employee makes their complaint, the employer would like to get rid of the person. The company finds some ground upon which to fire the employee, or simply makes the working environment so uncomfortable for the employee that she feels that she needs to leave. Now, the employee also has a cause of action for retaliation, which is often easier to prove than a discrimination case. The company will face even more liability and more disruption to its business.  The bottom line to a company is that distractions cost companies money.

Scenario 2:
The human resource director takes down the complaint. A few weeks go by and the  HR director reports that she found no evidence of discrimination. The employee feels that they have been violated and files a charge with the Equal Employment Opportunity Commission (EEOC). The EEOC investigates, which is disruptive to the business.The charge is then followed by a discrimination lawsuit from the disgruntled employee. The company must use its employees to provide testimony, answer discovery requests and compile documents. At the end of the trial, the company loses the case and is subject to  judgments and negative publicity in the community. Or, the company wins, but only after spending tons of money on attorneys’ and experts’ fees and well as lost productivity and income.

Scenario 3: After the employee files a complaint with human resources , the employer asks the employee if she would be willing to address this issue in a neutral environment that would use a mediator. The employee assured that the company is taking her complaint seriously. The employee feels that the mediation will be fair because the mediator has no interest in the company. The company would  set up a confidential mediation and invites the employee’s boss. At the mediation, the participants engage in a dialogue. The employer would hope that the employee comes to understand that the discipline was fairly assessed.  Or, the company discovers that the infraction was improperly assessed or a manager was out of line. Where some action has to be taken, the participants, with the help of the mediator, consider creative solutions and enter into a binding and confidential agreement that resolves the situation. The employee feels that they have been heard. As a result of the mediation, the employee returns to being a valuable productive asset to the company, the employer experiences less job turnover and averts going to court.

Employment discrimination lawsuits are a big problem for employers. The Bureau of Justice Statistics reports that there was a 300 percent increase in the amount of employment discrimination cases filed in Federal Court between 1990 and 1998.(1)The Society of Human Resources Management found that, out of 616 businesses polled, 57 percent had faced at least one employment related lawsuit in the previous five years.(2) Employers do not have to sit passively by waiting for the first, or next, lawsuit. Employers can avoid lawsuits by dealing with the conflict at its onset and by showing its employees that it cares about their concerns. Mediation offers that option. At the initial stages of conflict, the employer can use a mediator to address the problem. Mediators, trained in conflict resolution and bound to neutrality, assist both the employee and the company to resolve conflict. Mediation is immeasurably less expensive and intrusive than litigation. Further, most mediations are successful.

So why don’t more employers use mediation?

It may be because not all companies embrace change. Some companies only know how to respond to threats of litigation with a team of attorneys. However, statistics demonstrate that lawsuits are only increasing. Changing times require changing strategies. Some companies appear fearful that using mediation demonstrates weakness and other employees will then lodge complaints. In fact, mediation is a confidential process, so other employees will not know about any agreements reached in mediation. Employees will likely see an employer’s mediation policy as its effort to provide its employees with a safe and comfortable environment. Employers have a choice in this new era of increased lawsuits: it can be controlled by conflict or it can control conflict. Mediation offers businesses an alternative to litigation.

Alona M. Gottfried, Esq. and Mediator in Arizona for:

Simmons & Gottfried, PLLC
a Professional Limited Liability Company
8160 E. Butherus Dr., Suite #7
Scottsdale, AZ 85260

1 HR Watch, D’Ancona & Pflaum,LLC, February 14, 2000
2 New Developments In Employee Lawsuits, The Labor Research Association, January 4, 1999

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