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Ending sex discrimination at the top Shattering the glass ceiling.

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CPR N
ISTTIUTE
..........
EMPLOYMENT ADR
Page 157
Linda Stamato, of Rutgers University’s
Center for Negotiation and Conflict
Resolution in New Brunswick, N.J., uses
two recent high-profile cases involving
women executives-one positive, one
negative-and shows how systematic ADR
methods can encourage good employment
practices and help eliminate bad ones.
ADR ETHICS FORUM
........
Page 157
Re..:aling to a court what happened in a
mediation session gone awry isn’t wrong.
Or is i t ? Partner William B. Leahy and
associate Karen E. Rubin of Cleveland’s
Thompson Hine & Flory analyze and
update mediation confidentiality law.
COLLATERAL ESTOPPEL....Page 1 5 9
Orrick, Herrington & Sutcliffe partner W.
Reece Bader, of Menlo Park, Calif.,
analyzes a recent California Supreme
Court decision that says that issues decided
in an arbitration cannot, without the
parties’ agreement, be barred from being
raised in a future litigation.
CHALLENGING AWARDS. ..Page 159
The Eighth U.S. Circuit Court of
Appeals has clarified its view on vacating
arbitration awards. Faegre & Benson
partner Terri L. Combs of Des Moines,
Iowa, and Anthony DeToro, counsel at
NetZero Inc. of Westlake Village, Calif.,
review “undue means” under the Federal
Arbitration Act.
ADR BRIEFS
...................
Page 1 6 1
Details on Settlement Month, the
National Association of Securities Dealers’
annual effort to boost mediation use.
...........
CPR NEWS
Page 1 6 2
The nominating process opens for the
1999 CPR Awards for Excellence in ADR.
DEPARTMENTS
Letter to the Editor ............ Page
CPR 20 Past, 20 Future ..... Page
Index Info ...........................
Page
ADR Briefs .........................
Page
Cartoon by Cullum ............ Page
CPR News ..........................
Page
Online Info.. Pages 161, 162 &
158
160
160
161
161
162
168
FOR DISPUTE RESOLUTION
VOL. 17, NO. 9 OCTOBER’I~~~
WWW.CPRADR.ORG
Lnding hex Uiscrimination at the
Top: Shattering the Glass Ceiling
BY LINDA STAMATO
.
for the post was another woman, one of
many women managers,
,glison K. sdieffelin, a principal in M ~ ~ Hewlett-Packard’s
whose
numbers
are
reported at more than
gan Stanley Dean Witter & cO.’s equity divi25%
and
sion, contends that she was passed over for
0
.
.
managing director because of her sex. She
The
contrast
in the expefiled her complaint against the
two
women is
rience
of
these
firm with the U.S. Equal Emstriking.
It
invites
comparison
ployment Opportunity Comand analysis.
mission, a necessary first step to
Their stories, individufiling a suit. In July, the EEOC
ally
have
generated a good deal
took Morgan Stanley to court
of
national
coverage. But conto force the firm to release data
templating
the connection in
on its employment practices for
counterpoint
is a more producsenior female employees.
Does Good Faith Avoid a Breach
Of Mediation Confidentiality?
BY WILLIAM B. LEAHY
AND KAREN E. RUBIN
Scene: A federal court-ordered mediation.
ActomThe mediator; counsel for the defendant; and you,
as counsel for the plaintiff.
PZot; During the course of
the mediation, the defendant
takes a Dosition omosite to its I
stance in related state court litigation. Without disclosing the name of the
federal case or any mediation documents, you
inform the state court about the inconsistency,
to demonstrate that the defendant is “talking
out of both sides of its mouth.”
I I
Issue: Are you subject to federal-court
sanctions for breaching the confidentiality of
the mediation?
At least one recent case
suggests that the answer is
“Yes.”As mediation becomes a
more common means of dispute resolution, scenes like the
one above, raising significant
confidentiality issues, will arise
more frequently.
How should mediation
confidentiality be protected, and what penalty should follow when a party or counsel
breaches confidentiality? In two leading decisions in 1995 and 1997, courts imposed
I
(continued on page 166)
~~
Ending Sex Discrimination: Shattering the Glass Ceiling
(continued from front page)
fully consider both in terms of (a) internal
policies and practices that attract, retain and
reward productive employees and (b) mechanisms and practices that provide for informal
handling of potential discrimination cases
within the corporation and external methods that reduce the time, cost and damage of
litigating those that become formal claims and
complaints.
Those possibilitiesand their relation to the
world of alternative dispute resolution inspire
this article.
In what still remains a male-dominated
corporate world, women are increasing their
representation in high-status occupations. In
1997, the U.S. Bureau of Labor Statistics reported that women make up 44% of managers, 56% of accountants, 30% of attorneys
and 27% of doctors. They are contenders for
positions at the top. Whether women will
attain executive-level positions in U.S. corporations in significant numbers isn’t the
question any longer. It’s now more like “What
will it take for them to get there?And at what
cost?”
Think of it this way: Do corporations attract, reward and retain the best employees?
And, what do they do to protect them-and
the company-against discrimination?
LACK OF OPPORTUNITY
In the extensive coverage provided to the
Schieffelin case, there was a good deal of discussion about how rare it is to find a woman
willing to stay and fight when “most women
who think they are encountering the glass
ceiling simply quit.” Abelson, “If Wall Street
is a Dead End, Do Women Stay to Fight or
Go Quietly?” N. Y Times, at Al, C6 (Aug. 3,
1999).
Confirmation of this view is offered by
Catalyst, a New York-based nonprofit group
that studies women in the workplace.
Catalyst’s recent study of exit interviews with
more than 500 women managers who left
more than 20 companies in the 1990s found
nearly three-quarters reporting that “they
Linda Stamato is deputy director a t the Center for
Negotiation and Conflict Resolution a t Rutgers
University‘s Bloustein School of Planning and Public Policy i n New Brunswick, N.J., a teaching and
research institute that also provides technical assistance. She has a mediation practice that specializes i n complex matters, and does training and
writing i n academic, corporate and legal contexts.
were greatly influenced by their belief that
there was a lack of opportunity for advancement.”
Still further confirmation comes from accounting and consulting giant Deloitte &
Touche, where a committee of senior partners in 1992, asked to investigate why so
many women were leaving the firm, found
that both those who left as well as those that
stayed expressed concerns about opportunities for moving up. Evidently, Deloitte took
this and related findings seriously, altering
policies and talung actions that have produced
a drop in the percentage ofwomen who leave
annually to 18 percent, from 29 percent in
1991. Id. at C6.
Perceptions about discrimination are as
critical as they are problematic. If a woman is
not promoted and believes she is qualified,
how does she account for not making it? Discrimination is one possible explanation, but
not necessarily one that many women wish
to assert even if they suspect it. They hesitate
to speak up because they are not sure that
they are being discriminated against or they
don’t like the choices for challenging decisions that their firms provide. They also may
fear the potential downside impact from using their company’s or even their industry’s
grievance or appeal procedures. Promotions
are not assured by any means. People may be
bypassed for a variety of reasons, including
that their talents are unrecognized.
Looking elsewhere may seem the least
onerous and the more promising avenue.
Unquestionably, for the corporation, retention is an important part of the picture. If
there is a perception that opportunities for
advancement are not available, women will
look elsewhere. And good managers will be
lost.
Consider, in this regard, the HewlettPackard employment pattern: The company
reports that it loses fewer than 5% of its employees each year, compared with an industry average that the human resources
consulting firm William M. Mercer Inc. puts
at 17%. Abelson, ‘XPush From theTop Shatters a Glass Ceiling,” N. Y Times, at Al, 33
(Aug. 22, 1999).
But it wasn’t this way in the early 1990s.
Then, the turnover for women was twice that
of the men. Now that the gap has been eliminated and the rates are almost identical, the
question is, why?What happened? In 1992, a
new CEO, Lewis E. Platt, who is now chair-
man, helped instill a serious commitment to
workplace strategies that encouraged diversity.
The key thing is that Platt‘s policies were not
seen as simply the right thing to do but the
smart thing. “hything you can do to attract
and retain the best talent is really critical,”Platt
was quoted as saying in the New York Times.
Id. at 33. As if to confirm his point, Wall Street
lent a sweet note: When Fiorina’s appointment
was announced, Lucent’s stock fell, and
Hewlett-Packards gained.
So policies that promote and practices and
commitments that encourage retention of the
best employees may well raise the ceiling for
women at the same time that they produce a
significant return to the corporations where
the women choose to work. Frequent communications about job performance and expectations are essential. Executive-level
employees, as others, need to know where
they stand and what they need to do to improve promotion prospects. Standards for
promotion and performance expectationsalso
need to be understood and followed in order
to minimize the ambiguities and uncertainties that can lead to disappointments and,
ultimately, either to losing good managers or
to having dissatisfied, perhaps unproductive,
executives remain, or, to legal contests for
damages.
Policies and practices along these lines are
important dimensions; so are those that provide opportunities for executive level employees to sort out their reactions to potential
discriminatory behavior and decide how to
deal with their perceptions and unfulfilled
expectations.
CO N FLICT M A N AG EM ENT
CHOICES
Much has been written about employee grievance procedures and the need for integrating
informal, problem-solving opportunities at
early stages. This observation is no less vital
to those at executive levels, but special considerations also are warranted, given the needs
and interests- and difficulties -that are
more likely to surface there.
The organizational ombuds model offers
an attractive means to satisfy these concerns
not only because individuals may be more
willing to avail themselves of the service, and
may benefit from the assistance it can provide,
but because constructive organizational
change, where needed, is more likely to result.
(continued on next page)
Glass Ceiling
(continued from previous page)
(For a succinct and solid account of the
evolution of the Swedish ombuds model and
what it can offer to a corporation, see Waxman
and Gadlin’s article, ‘X Breed Apart,” in the
ABA Section of Dispute Resolution’s special
issue of Dispute Resolution Magazine on Innovations in Process: New Applications for
ADR (Summer 1998).)
In cases of imagined or actual discrimination, what can an ombuds do? The ombuds
can serve as (a) a counselor, to listen and identiQ options for dealing with, say, a denial of
promotion; (b) a negotiator, to mentor and
coach and guide a person through to an acceptable result; (c) a mediator, to help create
integrativesolutions among the parties; or (d)
a “risk manager,” an essential corporate link
that brings attention to issues that might
present serious liabilities or, less grave, might
warrant policy or procedural changes to improve conditions generally. These activities
can be taken without a formal grievance filing, a step, as noted above, many women
managers don’t want to take.
Having a high-ranking person to talk with,
one who-and this is critical-is knowledgeable about the organization and is thus in a
position to assess possible “interventions” in
light of that knowledge, and who is also neutral, independent and committed to confidentiality, may be an attractive prospect to a
woman who wants to assess her situation,
weigh her options, decide, with advice and
counsel, whether and how to proceed, and,
generally, craft an informed and secure decision about what to do.
Moreover, the ombuds model allows this
process to take place in a safe way, affording
an avenue for individuals who, according to
the Waxman and Gadlin article noted above,
“for reasons of organizational politics, personal animosity or past history, might be
worried about the prospect of reprisal if they
pursue their concerns through the formal
administrative hierarchy.” With the ombuds,
they have a way to raise sensitive concerns,
such as suspicions of sex discrimination, and
because it is clearly in the corporation’sinterest to encourage such concerns to be raised
early and managed effectively, the independence, confidentiality and informality offered
by the ombuds ofice has primary and protected status and importance. Id. at 23.
The ombuds has the flexibilityto construct
approaches to situations that take into ac-
count the nature of the problem, the circumstances in which it occurs, and the underlying needs and interests of the parties involved.
At the same time, the ombuds understands
that he or she intervenes not merely to address individual conflicts and problems but
to take account of the corporation as well so
that if systemic problems-patterns of abuse
or discriminatorypractice-are identified, the
ombuds has the responsibility and authority
to bring these matters to the appropriate
management level and to recommend
changes in policy, practice or personnel to
rectify them.
The strength of the ombuds office as an
alternative to leaving a job, bringing a formal
grievance, or filing a suit, rests with the status of the ombuds office and the creative and
effective functioning of the individual serving as a corporate ombuds. This is a critical
role: the ombuds is “in,” but not “of,” the
corporation. The ombuds is neutral and independent, but also networks and collaborates to establish good working relationships
throughout the corporation.
An ombuds program, well designed and
executed, can go a long way to providing a
meaningful outlet, producing an end, or an
informed “next step,” for a woman who believes she may be experiencingdiscrimination.
For the corporation, the benefit is clearly in
providing a means to uncover practices its
policies do not condone and to retain employees that add value to its bottom line.
THE MEDIATION ALTERNATIVE
Statistics suggest that effective, internal processes reduce litigation and that ombuds programs have a good record in this regard. One
recent study is illustrative: A Texaco Inc.
ombuds program launched in February 1998,
yields the following data: EEO allegations at
Texaco declined to 34 last year from 83 in
1997. Litigation activity shows a similar finding, with 56 new cases opened in 1998, down
from 1 10 a year earlier. There were no adverse determinations by the EEOC or state
agencies against Texaco in 1998. Cases that
were resolved in court decreased to 10 in
1998, is less than half the level of the previous two years. Ninety-three court matters
remained unresolved at the end of 1998,
down from 125 matters at the end of 1997.
Texaco Task Force on Equality and Fairness,
Second Annual Report to the U.S., District
Court; Business Wire (Aug. 2, 1999).
Still, some cases will proceed to formal,
adversarial processes, and here too, dispute
resolution offers promise. Many women reject bringing lawsuits that allege discrimination, even if they believe they have grounds,
because they question whether the result is
worth it. Litigation can make life even more
difficult for women by making the workplace
even less friendly. Janet Hanson, who spent
14 years at Goldman, Sachs & Co. before
founding her own investment firm, told the
New Erk Times that “it was hard enough to
be part of the inner sanctum,” but “I think it
is going to be much, much harder” ifwomen
turn increasingly to the courts for relief. See
Abelson, Aug. 3, 1999, at C6.
And companies are making it increasingly
difficult to get there, requiring employees as
a condition of employment, to mediate and/
or arbitrate their grievances before proceeding to court. In view of the negatives associated with litigation, and the reluctance of
women to go there, this limitation can also
be seen as a potential benefit.
Why mediation? Paradoxically the attractiveness of alternatives to formal litigation
gain in proportion to the seriousnessaccorded
an offense by law. Congress and the federal
courts raised the ante with respect to discrimination, both by the Civil Rights Act of 1991,
and subsequent decisions allowing workers
the right to a jury trial and punitive as well as
compensatory damages. Plaintiffs have recovered significant damages for acts of discrimination. (Recent decisions, however, provide
companies with greater protection against
punitive damages if they have solid policies
against discrimination and act in good faith.
See, for example, the U.S. Supreme Court‘s
recent decision in Kolstad u. American Dental
Association, 119 S.Ct. 21 18 (June22,1999).)
The stage is set, then, to advance the proposition that mediation is a viable means to satisfy interests with respect to potential
discriminatory practices; with discrimination
accorded serious attention by courts, meeting interests through informal mechanisms
is more likely to be achieved.
The EEOC‘s use of mediation has cut its
backlog of pending cases-to slightly more
than 52,000 this year, from a high of 111,451
in June 1995-as a result of a pilot program
inaugurated two years ago. Holmes, “Jobs
Discrimination Agency Lightening Its Load,”
N.Y Emes, a t A l , 15 (Feb. 22, 1999).
But at the same time, the agency has vigorously pursued a series of high-profile class(continued on following page)
(continued from previous page)
ENTER AS AN EQUAL
action discrimination lawsuits. It negotiated
a $34 million settlement in a sexual harassment suit against Mitsubishi Motor Corp.’s
U.S. subsidiary last year, and in 1997 a $183
million settlement in an age discrimination
complaint that had been filed against
Lockheed Martin Corp.’s predecessor, Martin Marietta Corp.
And now it is taking on Morgan Stanley
on behalf ofAllison Schieffelin.The agency’s
director, Ida Castro, says that by diverting
cases into mediation, “we can invest our resources to go after the really bad actors, those
companies that simply refuse to adhere to the
law.” Id. at A1 5. By pursuing such cases, and
thus clarifying and establishing precedents in
federal employment discrimination law, the
agency makes the argument for mediation
more compelling.
Mediation doesn’t exist solely to offer
quicker, easier resolutions and relieve the
burden on individuals, institutions, agencies
and courts, but, certainly, with respect to
potential discrimination cases, it helps individuals achieve better, more lasting resolutions
of value to themselves and to assist corporations in meeting and protecting their interests as well.
In this light, consider the process qualities and the remedies or outcomes that are
likely to be sought in a situation of potential
sex discrimination. Why might a woman
choose mediation? She may want to avoid a
protracted investigatory process and obtain
immediate relief; preserve her privacy and
avoid the stress of formal, adversarialproceedings; confront the situation, and possibly the
person or persons involved, in a way that provides both an opportunity to relate directly
what she feels and why so as to educate rather
than to accuse and to preserve future working relationships should they continue.
Given that subjectivity and ambiguity may
enter the picture, raising doubt about whether
discrimination did take place, a woman may
wish to avoid being twice victimized, both
by “the discriminator” and by the process, and
choose the informality and confidentiality
that mediation affords. Moreover, establishing blame is seldom high on the list of outcomes sought by the person who suspects
discrimination. Why use a system-like litigation or variations on the fact-finding or
arbitration theme-that seek to find fault and
levy costs or impose sanctions?
Discrimination, much like harassment, is often clouded by different perceptions ofwhat
took place and of what was expected or intended. Ordinarily, one would anticipate that
parties holding different, even clashing, perceptions of a pattern, an occurrence, a problem, a conflict, or a complaint, would draw
different conclusions as to how to deal with
it; voluntary agreement would seem unlikely.
Different perceptions may be genuine; in
those situations, mediation affords an opportunity for the alleged discriminator to put his
intentions aside and see what the woman who
alleges that practice occurred believes she
experienced. Often, however, the question is
not a difference in perception, but denial or
intentional misrepresentation of what occurred. In both cases, though, mediation affords each party an opportunity to see the
other’s perspective without having to agree
with it, and presumably, to reach an agreement that satisfies future needs and interests,
again, without having to share the same view
of what took place or didn’t take place.
Sex discrimination is also often about
power. Thus a process that allows a woman
to enter as an equal, which encourages dealing with discrimination and violations of
trust, is essential. Mediation allows for respectful communication, and, because solutions and remedies are voluntarily and
mutually arrived at, compliance rests on, and
makes responsible and accountable, both
parties. Thus, mediation can be empowering. Unlike most other systems, in mediation,
the way the problem is defined, interpreted,
or “framed,” rests with the parties; so does
control over the process and crafting remedies
or solutions.
(There are additional values to mediating
employment disputes, many of which are
particularly well described by Jean R.
Sternlight in her article, “Lawyers’Representation of Clients in Mediation,” 14 Ohio St.
J. Disp. Res. 269-366 (1999); see, especially
in this regard, pages 332-345.)
There are many “external mediation providers” who offer services to individuals and
corporations, Alterndtiver publisher CPR Institute for Dispute Resolution and the American Arbitration Association prominent
among them. Many smaller firms and individual mediators provide this service. Availability is not a problem.
Indeed, a “National Employment Dispute
Resolution Act of 1999” has been proposed
to establish a national program of directed
mediation for certain employment disputes“a process of structured negotiation, assisted
by a qualified mediator, designed to achieve
a full, fair and voluntary resolution.” A draft
was distributed at an American Bar Association Conference in Boston last spring.
The critical thing in malung mediation
an attractive option, is the context in.which
it occurs. Commitment by the corporation
to a discrimination-free workplace is essential, requiring both policies and practices that
sensitize managers and employees to what
may constitute discrimination; provide services for employees (counseling, education,
training); encourage employees to raise concerns about advancement opportunities,
among other things; and include appropriate
sanctions for failure to comply with core corporate values. Mediation can be effectivein a
corporation (or used externally to the corporation) only if the workplace in which the
dispute arises values freedom from discrimination.
THE FUTURE
The corporation of the future will enhance
its competitive position by attracting and retaining the best talent, and, for women, opportunities for advancement are critical
among the factors likely to make a difference
in this regard. Along the way, though, stand
significant obstacles not the least of which
are persistent patterns of discrimination. How
pervasivea problem is gender discrimination?
The first of six regions studied with respect
to this issue, Washington state, found that
one of every four workplaces discriminates
against women. By industry and by job category, women in Washington face a 17%
chance of being discriminated against each
time they seek employment or promotion.
Alfred Blumtosen, interim report to the Ford
Foundation, 1999.
As women attempt to shatter glass ceilings, corporations should minimize the collateral damage by putting effective dispute
resolution mechanisms in place. Organizational ombuds programs and external mediation options can aid the effective management
of individual cases but also assist the corporation in identifying policies or practices (or
people) that are having discriminatory results.
The way to the future, then, will be less hazardous, and, at the same time, prospects may
be enhanced for arriving there sooner.
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