Counties and other governmental employers can mount the most effective and viable defense to sexual harassment or hostile working environment harassment claims by taking certain prudent measures. These measures include at a minimum:

• effective training,
• adoption and implementation of a grievance, investigatory and internal complaint procedure,
• a speedy yet effective enforcement mechanism, and
• implementation of a mediation process.

Title VII renders it an unlawful employment practice for an employer

to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or natural origin. ⁽¹⁾

unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ....when (1) submission to such conduct is made either explicitly or implicitly a term or condition of the individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offense working environment. ⁽²⁾

In the first case decided by the United States Supreme Court involving a hostile working environment challenge, the Court cited these guidelines with approval. Meritor Savings Bank v. Vinson ⁽⁴⁾ held that the determination of whether a work environment is hostile must be based upon an analysis of the totality of the circumstances. In this case, a female employee of a bank, Mechelle Vinson, claimed that the bank's vice president had repeatedly subjected her to sexual harassment over a four-year term of employment, including demands for sexual favors, sexual intercourse on forty to fifty occasions, and a number of instances of forcible rape. The bank's principal defense was that the plaintiff had failed to report any sexual harassment to the bank's supervisory staff and had failed to use the complaint procedure.

The Supreme Court relied on traditional agency principles in evaluating the bank's liability, reasoning that liability could be imposed upon an employer if it knew or should have known of its supervisor's actions and failed to take effective corrective action ⁽⁵⁾ , and that an employee's failure to notify the employer would not necessarily insulate the employer from liability in a hostile working environment challenge. Regarding the bank's claim that Vinson had failed to use its complaint and grievance procedure, the Court held that while the existence of a grievance procedure and a policy against sex discrimination would not totally insulate an employer from liability, the effectiveness of such a procedure and policy would be important factors in the employer's favor. ⁽⁶⁾
 

In Harris v. Forklift Systems, Inc. ⁽⁷⁾ , the Court made it clear that it did not intend to limit hostile working environment harassment cases only to those cases where an employee's psychological well-being was affected. ⁽⁸⁾ The Court enumerated the following circumstances that would be included in the "totality of the circumstances" in determining whether a working environment is hostile:

The frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

Quid pro quo harassment occurs when an employer/supervisor demands sexual favors in exchange for compensation, advancement or even just keeping a job. Proving or disproving quid pro quo harassment is difficult since it generally occurs in private between two people. An employer or supervisor in a position to demand sex in exchange for employment rewards has likely done so on more than one occasion. Since such harassment is frequently not an isolated incident, plaintiff, although perhaps not able to corroborate the specific incident reported, may find it less difficult to establish a pattern of similar behavior toward other employees. ⁽¹¹⁾

In Meritor Savings Bank v. Vinson , supra , the Supreme Court rejected a strict liability standard. Once a prima facie case of quid pro quo harassment has been established, however, strict liability applies. For this reason the best defense to such a claim is prevention.

For example, in Karibian v. Columbia University , ⁽¹²⁾ claims of quid pro quo and hostile work environment harassment were brought against plaintiff's supervisor and Columbia University. The supervisor had repeatedly invited the plaintiff out to bars, to his apartment and ultimately forced her into a violent sexual relationship by telling her she "owed him" for such work benefits as raises, hours of work and autonomy at the office. ⁽¹³⁾ The plaintiff contacted members of the University's personnel staff to discuss her concerns a year after she started her employment, but at the plaintiff's request no investigation of the supervisor occurred, and the following year she was promoted. Not until three years after she commenced her employment did the plaintiff complain about the supervisor's conduct and then she gave her permission for the personnel staff to investigate the problem. The University then forced the supervisor to resign, but eight months after the plaintiff's complaint, the office in which she worked was closed and she was laid off.

The District Court granted summary judgment to the defendant supervisor and the university on both the quid pro quo harassment claim and the hostile work environment harassment claim. Dismissal of the quid pro quo harassment claim was predicated on the plaintiff's failure to prove actual economic loss. The Second Circuit held this was error since evidence of economic harm would not exist an employee submits to a supervisor's demands based on a belief that she would be punished if she failed to do so. The Second Circuit reasoned that an employer has strict liability under quid pro quo harassment since the supervisor is deemed to be acting on behalf of the employer when he makes decisions that affect the employee's economic status.

In Mullins v. Campbell Soup Co. , ⁽¹⁴⁾ the plaintiff was hired by Campbell Soup Company as an assistant deli manager in its Institutional Food Services Division and Chester Powell was her supervisor. According to Mullins, the following incidents of harassment occurred:

While being recruited for employment with Campbell Soup Company, one of the regional managers asked her why the supervisor was so "hot" to hire her. Mullins assumed that this was an indirect accusation that she was having a sexual relationship. Next she claimed that her supervisor placed his hand on her leg at a business dinner, that the supervisor Powell became angry because she would not "party" with him at the end of a business day, and that following an after-hours drinking session, while driving back to her hotel, Powell suggested that the two of them share a hotel room and perhaps "cuddle". Mullins alleged that during the months following her rejection of Powell, he repeatedly refused to meet with her or provide her with the necessary training, guidance or supervision to perform her job. Mullins claims that Powell was frequently verbally abusive to her and on at least one occasion, referred to her as a "fucking bitch". Powell met with Mullins and showed her a written performance appraisal prepared by him indicating poor performance. Mullins was rated at 2 to 3 on a scale of 1 to 6 with 6 being the highest. This review was based on the prior twelve months. Mullins claimed that during this same twelve months, she had received a 92 percent salary bonus out of a possible 100 and a previous mid-year performance review ranking her at a level 5. Additionally, Mullins also offered as evidence to prove her claim of quid pro quo sexual harassment that the Vice President of Sales told her "if you don't please Chet (Powell), you will be fired." The Vice President went on to say, "I came here to tell you, in no uncertain terms, that if you don't please Chet, that you are fired." The Ninth Circuit held that although this exchange could be read in several ways, a reasonable juror could conclude that Mullins was expected to submit to Powell's advances if she expected to remain employed. This interpretation is particularly plausible in light of the evidence that Powell's treatment and evaluations of Mullins became negative and hostile during the period after she rebuffed his advances, and that he encouraged her to resign.
 

The EEOC on at least one occasion has upheld a claim for "third party harassment." ⁽¹⁵⁾ A waitress complained to her employer, the owner of a restaurant, that four male patrons had grabbed at her and propositioned her, and witnesses later confirmed the waitress' story. The owner of the restaurant advised the waitress that the patrons were his friends and meant her no harm. Several days later the waitress told the restaurant owner that she had contacted her lawyer, and the restaurant owner then fired her. The EEOC determined that there was reasonable cause to believe that the restaurant owner had violated Title VII of the Civil Rights Act of 1964 when he discharged her almost immediately after her complaint of being sexually harassed by four male patrons. A similar rationale was employed in Menchaca v. Rose Records, Inc. , ⁽¹⁶⁾ the Court therety holding an employer liable under Title VII where the employer's store manager stood by during a regular customer's alleged sexual harassment of a cashier. In that case the Court found instructive the EEOC's guideline that makes an employer liable for the acts of non-employees if the employer, its agents, or its supervisory employees know or should have known of the conduct and failed to take immediate and appropriate corrective action. In Menchaca , before the incident that provoked the lawsuit, the employer was already on notice that the customer was engaging in inappropriate conduct, because the cashier had complained about his sexual comments and lunges. The incident which precipitated this suit involved the customer's picking the cashier up and eventually dangling her by her ankles, injuring her arm and tailbone, while the manager neither encouraged nor discouraged the customer's actions.
 

A sexual harassment plaintiff has the burden of proving that but for the plaintiff's sex, the plaintiff would not have been the object of harassment. The issue with regard to same-sex sexual harassment is whether it is cognizable under Title VII. One of the first cases to address the issue was Wright v. Methodist Youth Services, Inc. , ⁽¹⁷⁾ where the Court found that it is a violation of Title VII to terminate a male employee because he refused homosexual advances made toward him by his supervisor.

Similarly, in Joyner v. AAA Cooper Transportation , ⁽¹⁸⁾ the Court expressly stated, without discussion, that homosexual harassment violates Title VII.

New territory will continue to be explored by creative litigators in this relatively new arena of sexual harassment litigation. For example, in Carrasquillo v. D'Amato and Lynch , ⁽¹⁹⁾ a legal secretary in a law firm claimed that one of the firm's attorneys pressed into her back, sat on her desk "intently eyeing her body up and down," asked whether the secretary was "one of those women" who could not conceive because she was "allergic to male semen," and made other sexually explicit remarks. The alleged perpetrator was another female.

Three recent rulings in Tennessee, Louisiana and South Carolina also deal with the issue of whether a subordinate who has been subjected to same-sex harassment by a homosexual or lesbian supervisor may recover under Title VII of the Civil Rights Act of 1964.

In EEOC v. Walden Book Company , ⁽²⁰⁾ the U.S. District Court for the Middle District of Tennessee held that same-sex harassment is actionable under Title VII. A male homosexual supervisor allegedly made offense sexual advances to a male subordinate, and not to employees of the opposite sex. The District Court reasoned that the plain meaning of Title VII implies that it is unlawful to discriminate against a woman because she is a woman and against a man because he is a man, and that the subordinate in this case would not subjected to the harassment but for his sex. Similarly, the U.S. District Court for the Eastern District of Louisiana in Pritchett v. Sizeler Real Estate Mgt. , ⁽²¹⁾ held that sexual harassment of a female subordinate by a lesbian supervisor is a form of gender discrimination under Title VII. The Court reasoned that "but for" the gender of the subordinate, she would not have been subject to the sexual harassment, and that to disallow same-sex harassment actions under Title VII would exempt homosexuals and lesbians from the very laws that govern the workplace conduct of heterosexuals.

A male teacher's same-sex harassment action was held non-cognizable as a matter of law by the U.S. District Court for the District of South Carolina in Denekritis v. Johnson , ⁽²²⁾ the Court reasoning in that case that same-sex harassment is not the type of conduct that Congress intended to cover when it enacted Title VII. The Court nonetheless allowed the male teacher to pursue his retaliation claim based on his discharge after complaining of harassment by his male mentor, because he held a reasonable, although mistaken, belief that such conduct violated Title VII. ⁽²³⁾

There is virtually no legislative history available to guide the courts in interpreting Title VII's interpretation regarding discrimination "based on sex". As the Court emphasized in EEOC v. Walden Book Company , supra , however, the plain meaning of the phrase in Title VII prohibiting discrimination based on sex implies that it is unlawful to discriminate against women because they are women and against men because they are men. In short, when a homosexual supervisor is making offensive sexual advances to a subordinate of the same sex, and not doing so to employees of the opposite sex, it absolutely is a situation where, but for the subordinate's sex, he would not be subject to that treatment.
 

Another developing area of employer liability is sexual harassment by non-employees. The EEOC regulations hold an employer "responsible for the act of non-employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. ⁽²⁴⁾ The EEOC in reviewing such cases "will consider the extent of the employer's control and any other legal responsibility which the employee may have with respect to the conduct of such non-employees."
 

There is a right way and a wrong way to defend against this category of sexual harassment claims. In Saxton v. American Telephone and Telegraph Co. ⁽²⁵⁾ , the plaintiff's supervisor originally invited the plaintiff for drinks after work, placed his hand on her leg, kissed her and lunged at her from behind some bushes while she was walking in an arboretum, and on each occasion the plaintiff claimed that she warned the supervisor to stop these sexual advances toward her. The plaintiff declined to file a contemporaneous complaint, but six months later notified management of the earlier incidents and requested a job transfer. Employer properly initiated an investigation, during the course of which the plaintiff was allowed to work at home. While the investigation determined the evidence of sexual harassment to be inconclusive in that the supervisor suggested the contacts were consensual, the employer nonetheless concluded that the supervisor had exercised poor judgment in attempting to initiate a personal relationship with a subordinate employee. The employer transferred the supervisor and recommended that he attend a refresher course on sexual harassment. ⁽²⁶⁾ During the five-week investigation, the plaintiff continued to work at home, and after her supervisor's transfer was completed, she failed to return to work despite repeated requests by the employer that she discuss her ongoing assignments. The plaintiff refused to cooperate unless her merit rating was improved and her attorney's fees were compensated, and when she failed to return to work, she was terminated.

Illustrative of what some may perceive as the wrong way to defend against such claims is Hansel v. Public Service Co. of Colorado ⁽²⁷⁾ . In Hansel , a female blue collar employee complained of an ongoing campaign of sexual harassment and sex discrimination in which co-workers grabbed, fondled, struck and made her the object of obscene comments. One co-worker while holding a hangman's noose told her it would be better if she just killed herself, and her supervisor told her on three occasions that women should not be in power plants because they were not mechanically inclined. Management failed to act after being apprised of these complaints, and the plant manager failed to discipline any of the co-workers, taking the position that the plaintiff was too "thin-skinned about words," was trying too hard to be liked, and should get together with "other gals" in a support group to discuss these actions. In awarding pay on the sexual harassment claim, the trial court noted with particular displeasure that a sign had been posted in the control room which read "sexual harassment in this area will not be reported; however, it will be graded."

An equally ineffective defense was presented in Burns v. McGregor Electronic Industries, Inc. ⁽²⁸⁾ . In Burns , the company owner showed the plaintiff advertisements for pornographic films, continually talked about sex, made lewd gestures, asked her for dates at least once a week, requested her to engage in oral sex, sat under a conveyor belt rubbing the legs of the women on the assembly line, and engaged in other such conduct. The plaintiff complained of the harassment to the plant supervisors, and in response to the plaintiff's suit, the employer asserted the defense that the plaintiff could not be sexually harassed because of her personal background. The District Court ruled for the employer, even though it found that these were unwelcome sexual advances. In doing so it noted that the plaintiff had appeared nude in Easy Rider and In the Wind , two motorcycle magazines, her photographs revealing a pelvic tattoo and body jewelry. The U.S. Court of Appeals for the Eighth Circuit reversed and remanded the case on the basis of inconsistent findings, reasoning that if the owner's conduct was unwelcome, based on sex, affected a term, condition or privilege of the plaintiff's employment, and the employer knew or should have known of the harassment and failed to take proper remedial action, the plaintiff had established a hostile working environment claim. The Court of Appeals also noted that the lewd talk and other offensive conduct had occurred both before and after the plaintiff had appeared in the motorcycle magazines. The trial court nonetheless on remand persisted in his conclusion that, on the basis of the totality of the circumstances, plaintiff could not be the subject of sexual harassment, and the Eighth Circuit on the second appeal directed the trial to enter judgment for the plaintiff.
 

The standard for determining sexual harassment under Title VII is different depending upon the work environment. ⁽²⁹⁾ In Gross v. Burggraf Construction Co. , ⁽³⁰⁾ a female construction worker alleged that she was subjected to gender discrimination in a work environment. In support of her allegations, Gross claimed that her supervisor referred to as a "fucking cunt", that after her supervisor was unable to elicit a response from her over the C.B. radio, he made the statement to another employee that "sometimes don't you want to smash her in the face". Additionally, Gross claimed that her supervisor yelled at her, "What the hell are you doing? Get your ass back in the truck and don't you get out of it until I tell you." She also alleged that her supervisor approached her after work one day and offered to buy her a case of beer if she would tell another employee to "go fuck himself the next time he chewed her out."

The Court did not accept her allegations as proof of either gender discrimination or a hostile work environment. In the real world of construction work, the Court reasoned, profanity and vulgarity are not perceived as hostile or abusive and indelicate forms of expression are accepted or endured as normal behavior for purposes of Title VII gender discrimination. ⁽³¹⁾ Additionally, the Court would evaluate female construction worker Title VII claims of gender discrimination based on hostile work environment theories in the context of blue collar environment where crude language was commonly used by both male and female employees. In the Court's analysis, the term "ass" as used in the male construction's statement to the female employee was found to be gender neutral because the term referred to a portion of anatomy of persons of both sexes and its usage at the construction site did not demonstrate gender discrimination under Title VII. In looking at when the male construction supervisor used the word "fuck", the Court found that the supervisor was only repeating the same vulgar verb that had been previously used by the female employee and that the supervisor's comment appeared to be a crude attempt to express his support for the female employee. It was clear from Gross' deposition testimony that she contributed to the use of crude language on the job site.

In a similar case, Stiner v. Showboat Operating Co. , ⁽³²⁾ a female blackjack dealer testified that her supervisor referred to her in her presence as a "dumb fucking broad", a "cunt", and a "fucking cunt." ⁽³³⁾ Additionally, the record showed that he yelled profanities at her in front of customers and other casino employees while moving toward her in a threatening manner. In reversing an Order Granting Summary Judgment, the Ninth Circuit held that while the evidence established that the supervisor was abusive to men and women alike, his abusive treatment and remarks to women were of a sexual or gender specific nature.

A similar rationale and result appears in Huddleston v. Roger Dean Chevrolet, Inc. , ⁽³⁴⁾ where the evidence showed that a supervisor yelled at Huddleston virtually every day in front of her co-workers. ⁽³⁵⁾ On one occasion, her supervisor grabbed her by the arm and forcibly moved her a few feet. She was called a "bitch" and a "whore" to her face and in front of her customers. Her appearance was frequently ridiculed and she was told "we're going to take your pants off and put a skirt on you" and "we're going to take your clothes off to see if you are real." The Eleventh Circuit concluded that this evidence was sufficient to demonstrate gender discrimination.

Another interesting case illustrating the somewhat blurred distinction between hostile and "obnoxious" work environment is Webb v. Baxter Healthcare Corp. . ⁽³⁶⁾ Webb was hired as a sales representative by Baxter Healthcare, and she claimed she was subjected to a hostile workplace because of her gender. In support of her allegations, Webb presented a memorandum which her supervisor sent out to all of his sales representatives announcing Webb's hiring where he referred to her as a "beauty" who was joining his "Beasts in the East". Within a few weeks, Harris, Webb's supervisor, sent a gift to his employees (including Webb) a t-shirt from an Ocean City bar called "Big Peckers." Similarly, in a voice mail message, he referred to the representatives as "all you swinging dicks." Harris made other remarks to her such as "why can't you take it like a man," and when Webb complained to Harris, his response was "you're the only girl in boys' town and you'll just have to take it." Webb also asserted that Harris discriminated against her because she was Jewish by making such comments as "you Jews are all alike" and "I don't know what's wrong with you Jews." The District Court found that the situation was not so much a hostile work environment as perhaps an obnoxious work environment. They found that while Mr. Harris would not be a pleasant supervisor, he's got a true locker room sense of humor and that it was not in good taste. The Fourth Circuit disagreed and found that there was sufficient evidence of a hostile workplace motivated by discrimination on the basis of religion or disability.
 

When the courts analyze sexual harassment cases, there appears to be a very thin line between remarks that would be thought to cross the line separating vulgarity which is not actionable, from harassment, which is potentially actionable. A case which illustrates this proposition is Baskerville v. Culligan Intl. Co. . ⁽³⁷⁾ Baskerville was hired as a secretary in the marketing department, and she was assigned to work for Michael Hall. In trying to prove her claim of sexual harassment, Baskerville said that Hall would call her a "pretty girl" as in "there's always a pretty girl giving me something to sign off on". She also stated that once when she was wearing a leather skirt, he made a grunting sound that sounded like "um, um, um" as she turned to leave his office. Once when she commented on how hot his office was, he raised his eyebrows and said "not 'til you stepped your foot in here." Once when the announcement "may I have your attention, please" was broadcast over the public address system, Hall stopped at Baskerville's desk and said, "you know what that means, don't you? All pretty girls run around naked." When Baskerville asked him whether he had gotten his wife a Valentine's Day card, his response was that he had not, but he should because it was lonely in his hotel room (his wife had not yet moved to Chicago with him) and all he had for company was his pillow. Then Hall looked at his hand and made a gesture that was intended to suggest masturbation. The Court found that no reasonable jury could find that Hall's remarks created a hostile work environment. These incidents were spread over seven months, and the concept of sexual harassment is designed to protect working women from the kind of male attentions that can make the workplace hellish for women. It is not designed to purge the workplace of vulgarity.

Drawing the line is not always easy. Hall never touched the plaintiff. He did not invite her explicitly or by implication to have sex with him, or to go out on a date with him. He made no threats. He did not expose himself, or show her dirty pictures. He never said anything to her that could not be repeated on primetime television. The Court stated that the reference to masturbation completes the impression of a man whose sense of humor took final shape in adolescence and that it is no doubt distasteful to a sensitive woman to have such a silly man as one's boss but only a woman of Victorian delicacy, a woman mysteriously aloof from contemporary American popular culture in all its sex-saturated vulgarity would find Hall's patter substantially more distressing that the heat and cigarette smoke of which the plaintiff does not complain. The infrequency of the offensive comments is relvant to an assessment of their impact. A handful of comments spread over months is unlikely to have such an emotional impact as a concentrated or incessant barrage. ⁽³⁸⁾
 

A well-drafted policy which clearly defines sexual harassment and expresses strong disapproval of such conduct of setting forth understandable procedures for grievance and investigation, can not only help protect an employer from liability but can also discourage behavior that may cause such liability. The ABA model policy drafted by the ABA's Commission on Women in the Profession provides an excellent example of a policy that can be adapted to the needs of public as well as private employers. The key elements of the ABA model policy are:

1. A strong statement concerning the employer's philosophy and disapproval of sexual harassment.

2. A clearly articulated definition of sexual harassment with examples of behavior that constitute verbal and physical sexual harassment.

3. Identification of individuals covered under the policy, particularly supervisory personnel.

4. Grievance and investigation procedures which can be relied on and followed in response to sexual harassment complaints, including guidelines to ensure confidentiality and to protect complaining parties from retaliation, as well as procedures that allow the immediate supervisor to be circumvented if the complaint is against the immediate supervisor.

5. A statement of disciplinary consequences, including but not limited to transfer, suspension, or termination.

6. An effective mechanism to implement and monitor the sexual harassment policy.

7. Adequate and recurring sexual harassment training for all employees, including regularly repeated educational programs.

8. A firm commitment to investigate complaints immediately and thoroughly, and to conclude the investigation promptly and to act decisively against known sexual harassers rather than waiting for complaints. ⁽³⁹⁾
 

Particularly in the wake of Professor Anita Hill's testimony before the Senate Judiciary Committee on confirmation of then Supreme Court nominee Clarence Thomas, the public's awareness of sexual harassment in the workplace has reached an all-time high. This new awareness has led to the "preemptive strike," which occurs when employees who believe they on the verge of being fired or disciplined try a preemptive strike by asserting sexual harassment claims against a superior in the outside hope that attention will be diverted from their own predicament and that their job will be protected.

An employer who settles quickly in the face of a preemptive strike may acquire "a reputation as a cash register for disgruntled employees." ⁽⁴⁰⁾ On the other hand, the employer who believes it has recognized a preemptive strike may promptly fire or otherwise discipline the complaining party, who now has a valid cause of action where there was no cause of action before, based on both federal and state statutory protection of employees from retaliation for asserting charges of sexual harassment. ⁽⁴¹⁾
 

The chances of settling a sexual harassment claim are enhanced by an informal, resolution-oriented atmosphere of mediation, a process which requires careful planning in order to arrive at a satisfactory result. As one of the most flexible forms of dispute resolution, mediation can be resorted to at any stage of a proceeding, even after a civil action has been filed in court. Key components of this process are:

1. Selection of Mediator . Consideration should be given to selecting one female and one male co-mediator to overcome the potential reluctance by each party who may believe that a mediator of the same sex as the party will have a greater understanding of that party's position.

2. Pre-mediation Preparation . In view of the highly charged emotional context in which such claims are asserted, the mediation may be structured so as to defer a face-to-face meeting initially, call for the parties to submit position papers and key documentary evidence before the mediation commences, and to agree to have a meeting of all parties and the mediator only after significant progress has been made toward resolution of the dispute.

3. Privacy and Confidentiality . Mediation also provides the benefits of privacy and confidentiality, giving the employee a private forum with an attendant reduction of the level of emotional trauma, while providing the employer with reduced risk of negative publicity. A confidentiality agreement entered into before the mediation process begins, assuring the parties that anything that may be disclosed will not be used against them if the mediation process does not succeed, will facilitate full, frank and open discussion, with assurance that those disclosures will not be used improperly by the parties nor provided to outside or third parties.

4. Reduced expense . As one of the least expensive and disruptive methods for dispute resolution, mediation bypasses the routine discovery process and often avoids other litigation expenses, with each of the parties to a mediation usually dividing the mediator's fees. Business disruption costs can also be minimized through the mediation process, such as a mediation solution that results in the complaining party returning to work and therefore limiting the wage claim, with a resulting savings to the employer, who may also avoid the cost of extensive discovery by resolving the dispute quickly through mediation, not to mention the savings from improved employer-employee relations, reduction of the amount of work force down time, and the reduction of lost employee hours.
 

In the EEOC's first reported attempt to stop the spread of unilaterally imposed dispute resolution policies aimed at preventing employees from going to court with claims of violation of Title VII, the U.S. District Court for the Southern District of Texas issued a preliminary injunction forbidding an employer to require its employees to use its "ADR policy." EEOC v. River Oaks Imaging and Diagnostic . ⁽⁴²⁾ The injunction in that case forbids the employer to require employees to enter into any alternative dispute resolution policy under which they would pay the costs of proceedings, and it also orders the employer not to interfere with their right to file an EEOC charge or to bring a Title VII action.

In light of this action, it cannot be emphasized enough that a mediation policy should be designed, implemented and carried out voluntarily at all stages in the process. Coercive alternative dispute resolution policies such as the one enjoined from implementation in River Oaks may be an open invitation to litigation.
 

The enduring nature of solutions that are reached through mediation is perhaps one of its greatest benefits. Each party participates in the process of venting complaints, articulating goals, and fashioning a remedy or resolution that is appropriately tailored to fit the needs of the parties. With all parties being fully prepared, they can take an active role in the process of planning for the mediation and can participate meaningfully in the process itself. This form of dispute resolution is thus well suited to resolving sexual harassment claims under win-win circumstances where the parties are free to explore creative solutions, which may include preserving an ongoing employer/employee relationship. ⁽⁴³⁾
 
 

* * * * * * * *

Benjamin E. Griffith is a partner in the Cleveland, Mississippi, firm of Griffith & Griffith and is past-President of the National Association of County Civil Attorneys. He is a member of NACo's Intergovernmental Relations Steering Committee and serves as Recorder of the Litigation and Risk Management Section of the National Institute of Municipal Law Officers. He served as President of the Mississippi Association of County Board Attorneys, Chairman of the Government Law Section of the Mississippi Bar, and member of the American Bar Association's Sections on State and Local Government Law, Litigation and Torts and Insurance Practice.

His federal civil litigation practice emphasizes representation of counties, municipalities and other local government entities, as well as administrative proceedings before the United States Department of Justice and the Equal Employment Opportunity Commission. He is Board Certified in Civil Trial Advocacy by the National Board of Trial Advocacy.

_______________________________________
1. 42 U.S.C. 2000(a)(1) (1994).

2. 29 C.F.R. 1604.11(a) (1980).

3. 29 C.F.R. 1604.11(f) (1980).

4. 477 U.S. 57 (1986).

5. Different standards are usually applied in determining liability where the alleged harasser is a supervisor as opposed to a co-worker. In co-worker cases, the courts have usually required the plaintiff to prove "that the employer, through its agents or supervisory personnel, knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action." Rabidue v. Osceola Refining Co. , 805 F.2d 611 (6th Cir. 1986). The courts have emphasized that the "new or should have known" standard applies only to co-worker cases. On the other hand, in "supervisor" cases, the courts have required the plaintiff to prove that the actions of the supervisor fell within the scope of the supervisor's employment or that the harassing actions were foreseeable to the employer. See Kaufman v. Allied Signal, Inc., Autolite Div. , 970 F.2d 178 (6th Cir. 1991).

6. Meritor Savings Bank v. Vinson , 477 U.S. 57, 67, 72 (1986).

7. 115 S.Ct. 267 (1993).

8. According to the Court, as long as a working environment "would reasonably be perceived, or is perceived, as hostile or abusive, there is no need for it to also be psychologically injurious." 115 S.Ct. at 271.

9. 10 F.3d 526 (7th Cir. 1993).

10. Id . at 536.

11. M. Reuben and I. Zucker, "Remedying Sexual Harassment: A Primer," 21 Litigation 43 (ABA Section of Litigation, Winter 1995).

12. 14 F.3d 773 (2nd Cir. 1994), cert. denied , 114 S.Ct. 2693 (1994).

13. Id . at 776.

14. 1995 U.S. App. LEXIS 11918 (9th Cir. 1995).

15. EEOC Decision No. 84-3, 1984 EEOC LEXIS 3 (February 16, 1984).

16. No. 94C1376 (N.D. Ill. March 31, 1995), 67 F.E.P. Cases 1334, 63 U.S.L.W. 2755.

17. 511 F. Supp. 307 (N.D. Ill. 1981).

18. 597 F. Supp. 537 (M.D. Ala. 1983).

19. No. 94civ.4195 (S.D. N.Y., filed June 1994).

20. No. 3:93-1050 (M.D. Tenn. May 4, 1995), 64 F.E.P. Cases 1446, 63 U.S.L.W. 2772.

21. No. 93-2351 (E.D. La. April 25, 1995), 67 F.E.P. Cases 1377, 63 U.S.L.W. 2772.

22. No. 4:93-3126-22 (D. S.C. April 11, 1995), 67 F.E.P. Cases 1449, 63 U.S.L.W. 2772.

23. Accord: Vandeventer v. Wabash National Corp. , 867 F. Supp. 790 (M.D. Ind. 1994)(holding that same-sex harassment is not actionable under Title VII and that "Title VII is aimed at a gender-biased atmosphere; an atmosphere of oppression by a `dominant' gender.").

24. 29 C.F.R. 1604.11(e).

25. 10 F.3d 526 (7th Cir. 1993).

26. Id . at 528.

27. 778 F. Supp. 1126 (D. Colo. 1991).

28. 955 F.2d 559 (8th Cir. 1992).

29. 42 U.S.C. 2000(3) (1994).

30. 53 F.3d 1531 (10th Cir. 1995).

31. Id. at 1538.

32. 25 F.3d 1459 (9th Cir. 1994), cert. denied , ___ U.S. ____, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995).

33. Id . at 1461.

34. 845 F.2d 900 (11th Cir. 1988).

35. Id . at 903.

36. 1995 W.L. 352485 (4th Cir. Va.).

37. 50 F.3d 428 (7th Cir. 1995).

38. Id. at 431.

39. M. Reuben and I. Zucker, "Remedying Sexual Harassment: A Primer," 21 Litigation 43, 44 (ABA Section of Litigation, Winter 1995).

40. Id . at 46.

41. 42 U.S.C. 2000(e)-3; EEOC v. Virginia Carolina Veneer Corp. , 495 F. Supp. 775, 777 (noting the statute "protects employees from employer retaliation for filing complaints with the Commission, even if the charges alleged are false and malicious.").

42. No. H-95-755 (S.D. Tex. April 19, 1995), 67 F.E.P. Cases 1243, 63 U.S.L.W. 2733.

43. M. Grover, "Mediation of Sexual Harassment Claims," 24 The Brief 55-57 (Spring 1995).