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Employment Discrimination/Harassment/Retaliation


1. Persistence Pays Off in Age Discrimination Case


The Challenge.  Former VP had risen through the ranks for  30+ years before she was (in her view) unceremoniously fired for trumped up reasons.  She sued for age discrimination and, by the time we mediated, the parties’ and counsels’ acrimony had escalated steadily through voluminous electronic discovery, many depositions, and summary judgment briefing. With the parties headed to trial in six weeks, the judge encouraged them to try again to resolve the case before the final ramp-up for trial. 


Overcoming the Challenge.  The parties were unwilling to be in the same room for a joint session.  In Former VP’s room, she teared up when talking about the nosedive her self-esteem took as result of her abrupt termination.  In Former Employer’s room, after getting their perspective on a number of key issues, we spoke frankly about their case’s strengths, as well as its biggest challenges and risks. 


We made meaningful progress, but the parties “dug in” when they were still far apart.  Former VP’s counsel asked for my analysis of the case.  I responded that I thought Former VP would be a strong and likeable witness with a powerful story, but her evidence that age was the reason for her discharge was thin.  Her counsel said he agreed.  Former VP then was able to make a constructive move down, and progress bred more progress – until Former Employer stopped suddenly and unexpectedly when there was still a $200,000 gap between the parties.  After some lively venting in Former VP’s room, we discussed possible options other than bidding against herself.  Former VP decided on a contingent offer (i.e., “I would take $x if you offered it.”), reflecting real movement.


The Result.  In response to Former VP’s conditional move, Former Employer decided to put  more on the table, which Former VP accepted.  Both parties avoided the cost and unpredictable all-or-nothing outcome of a trial.



2. Pre-Work Makes The Difference in an FMLA Case


The Challenge.  Information gaps can create an obstacle to settling early in a case.  Here, three plaintiffs claimed their terminations for alleged rule violations were really in retaliation for intermittent leaves protected by the Family and Medical Leave Act (FMLA).  Employees’ counsel’s mediation statement made clear to me his valuation was based on the assumption that discovery would reveal Employees had been treated less favorably than others who had not had FMLA leaves. 


Overcoming the Challenge.  A call to Employees’ counsel in the days before the mediation confirmed that he had not yet seen any data related to other terminations.  He agreed this impaired his ability to value the case.  I called Former Employer’s counsel to suggest they share information about others who were terminated for rule violations.  He was concerned about revealing confidential information before a protective order was in place.  I asked if he would be comfortable sharing the documents for attorneys’ eyes only at the mediation without making copies, explaining that otherwise we would, in essence, be mediating two different cases.  He agreed to consult his client.  Former Employer came to the mediation with the documents. 


The Result.  The documents enabled Employees’ counsel to realistically assess their case.  Now there was a real chance for progress.  Working through various “stuck points,” we arrived at a resolution. 



3. A Peaceful Parting of the Ways


The Challenge.  An African-American sales manager lodged an internal complaint that his boss had made racial slurs.  Company investigated and terminated the boss, to the dismay of Manager’s peers.  The uncomfortable work environment led Manager to request a transfer.  Company relocated Manager and gave him a two-year contract.  Manager’s transfer did not work out and, with Manager’s contract due to expire soon, he sued claiming race discrimination and retaliation.  


Overcoming the Challenge.  At the mediation, we negotiated on two tracks:  (1) Manager stays with Company, or (2) he resigns with a negotiated severance payment.  After spending the bulk of the day exploring possible job opportunities within Company, it became apparent none was acceptable to both Manager and Company. 


So, the focus turned solely to money for a resignation and release. By then it had been a long day, and the parties were still in two dramatically different stratospheres, and both were unwilling to make a big move.  Frustration in both rooms was mounting.  I suggested that each side confidentially write on a piece of paper the best move they could possibly make that day.  After reviewing their slips of paper, I reported that the gap was not nearly as big as they feared, and additional work was warranted. 


Company’s team then announced they had to leave soon to catch flights.  I had a strong sense that, if we dispersed with no further progress, the momentum we’d built would be irretrievably lost.  With their consent, I made a mediator’s proposal – a number each side could accept or reject – and neither would learn the other’s answer unless both said “yes.”  I explained the number was equally distasteful to both, and why I thought it was a better deal than the alternative of no deal.  We ended the session, agreeing that each side would get back to me by week’s end. 


The Result.  Both accepted the deal.  They had each come to the conclusion that it was a more satisfactory result than continuing to be stuck in a negative employment relationship and contentious litigation.  Company was able to move on with its business, and Sales Manager was able to have closure, and reasonable financial security while looking for another job. 



4. Settling a Sexual Harassment Case


The Challenge.  Claiming emotional distress from the stress at work and financial worries, Manager had resigned in frustration over the business owner’s sexually explicit language and mistreatment.   


Overcoming the Challenge. Company was adamant it would not pay more than the case was worth – which Company put at a low number because economic damages were limited (Manager had found a new job with comparable pay and benefits before resigning).  Using a whiteboard, we performed a decision tree analysis that considered risk factors with which defense counsel agreed.  The defense was then able to value the possibility that Manager would get a passed summary judgment to a sympathetic jury and win modest damages, putting the Company on the hook for Manager’s legal fees as well as its own fees. 

We were ready to focus on dollars.  Company was reluctant to make a meaningful move for fear it would send the wrong signals.  I encouraged Company to consider putting enough on the table for Manager to see it was serious, with a message that the negotiations would not be productive if Manager did not get closer to Company’s neighborhood.  They agreed to take that approach, which started the positive momentum. 


The Result.  We kept the progress going, and were able to reach resolution.  Manager was able to move forward, and Company was able to achieve its goals of avoiding the distraction of litigation as well as avoiding the risk of embarrassing disclosures. 



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