AN EMPLOYMENT ATTORNEY WORKING WITH VICTIMS OF SEXUAL HARASSMENT AND GENDER DISCRIMINATION |
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| Kansas employment law attorney representing Kansas employees in employment disputes concerning race, age and gender discrimination, disability issues, family medical leave, civil rights, due process, sexual harassment, wage and hour disputes, wrongful discharge and termination in Kansas City, Johnson County, Overland Park, Topeka, Wichita, and across the state of Kansas. Kansas employees who believe their employment rights have been violated should contact a competent Kansas employment rights attorney who knows federal and Kansas law. |
Sexual Harassment and Hostile Work Environment: Mediation with the EEOC or KHRC |
| Michael M. Shultz An employment attorney for Kansas employees 913-385-9955 |
| Although the victim of sexual harassment can file a lawsuit on her own, the legal process is certainly a complicated process, and it will be best if she obtains a competent Kansas employment attorney with experience in sexual harassment and hostile work environment lawsuits. The litigation process is much slower than the mediation process at the EEOC or the KHRC. Right now, it costs $350 to file a lawsuit in federal court. Most lawyers handle these cases on a contingent fee basis and will advance any of the costs of the lawsuit. The lawsuit begins with the filing of a Complaint which must be officially served on the employer. Even if the sexual harassment was done by co-workers or a supervisor, the federal anti-discrimination laws only allow the employee to sue the employer. It is possible, however, that other claims could be brought against individuals who created the sexual harassment or hostile work environment. After the lawsuit for sexual harassment is filed, the employer will file an answer to the lawsuit. Then the fun begins. For the next 4-5 months, the lawyers engage in discovery and try to discover all of the information that the other side has to support its case. The employer's lawyers will try to obtain all of the information that they can against the woman who is now a plaintiff in a federal lawsuit. This means that they will go after past employment records, school records and health records. Because most victims of sexual harassment claim that they suffered emotional distress (which is very understandable), the Kansas courts generally allow the employer to obtain the victim's medical records, including counseling records even for things that do not relate to the claim of sexual harassment. For many victims of sexual harassment, it feels like the harassment is happening all over again. The federal courts require the parties to mediate the dispute again, even if it was already mediated. However, now the parties will know a lot more about the case and have a better basis to determine the strengths and weaknesses of each side. The vast majority of lawsuits get settled and there is no trial. Also, the courts throw out many lawsuits because they do not believe that the victim can prove her case of sexual harassment. Less than 2 cases out of every 100 actually go to a jury trial. |
| The Litigation Process |
After you file a charge of sexual harassment with the EEOC or
the KHRC, your case will often be sent straight into mediation.
The EEOC has employees who are specially trained to mediate
employment discrimination cases. The KHRC contracts with
outside mediators to help settle charges of discrimination.
In the typical mediation, the employee and his or her attorney
meet with the employer and its attorney and the mediator. This
usually will occur within about two months after the charge of
discrimination is filed.
At the mediation of your charge of sexual harassment, the
mediator will usually have a joint meeting of all parties in which
the attorneys for the parties will make brief opening statements.
These statements can be important because each side might
not know a lot about the other side's position.
After this opening session, the mediator will usually go back and
forth between the parties and try to get them to come to an
agreement on a settlement of the dispute. The most important
element in this process is that it is confidential. Nothing that is
said can be used against either party later.
Mediation is an extremely important process. If the employer
has agreed to mediation, it means that there is a good chance
that the employer wants to resolve the dispute early. As an
attorney, I believe that a Kansas employee who files charge of
discrimination should have an attorney; indeed, I think the
employee should always use an attorney to help draft the charge
of discrimination.
The goal of the mediation is to settle the charge of discrimination
in a way that can make both sides happy, but this is very difficult.
The usual topics at the mediation include:
1. Possible reinstatement if an employee was terminated
2. Back pay and perhaps some future pay
3. Positive reference letter
4. Confidentiality of the settlement, if there is one
5. An agreement that neither side will speak badly of the other
6. A release of the claims of the employee, including withdrawal
of the charge of discrimination. In other words, if there is a
settlement at the mediation, the employee is expected to give up
all possible claims that could ever be brought against the
employer based upon information that is or could be known at
that time.
This release of claims is extremely important to an employee
who has to decide whether to agree to a settlement. The
release of claims means that the employee cannot later decide
to sue the employer even if the employee later thinks he did not
get enough from the mediated settlement.
I believe that this is why a lawyer is so important for the
employee. A lawyer will have a good idea of what the
employee's claims are worth and how much money should be
paid in settlement.
Of course, not all mediations end in settlement. When this
happens, if the employee wants to pursue the claim against the
employer, the usual next step is that the EEOC or KHRC will
investigate the charge of discrimination and, most often, be
unable to determine if discrimination occurred or not. At that
point, a dismissal is issued and the employee receives the right
to sue letter.
has agreed to mediation, it means that there is a good chance
that the employer wants to resolve the dispute early. As an
attorney, I believe that a Kansas employee who files charge of
discrimination should have an attorney; indeed, I think the
employee should always use an attorney to help draft the charge
of discrimination.
The goal of the mediation is to settle the charge of discrimination
in a way that can make both sides happy, but this is very difficult.
The usual topics at the mediation include:
1. Possible reinstatement if an employee was terminated
2. Back pay and perhaps some future pay
3. Positive reference letter
4. Confidentiality of the settlement, if there is one
5. An agreement that neither side will speak badly of the other
6. A release of the claims of the employee, including withdrawal
of the charge of discrimination. In other words, if there is a
settlement at the mediation, the employee is expected to give up
all possible claims that could ever be brought against the
employer based upon information that is or could be known at
that time.
This release of claims is extremely important to an employee
who has to decide whether to agree to a settlement. The
release of claims means that the employee cannot later decide
to sue the employer even if the employee later thinks he did not
get enough from the mediated settlement.
I believe that this is why a lawyer is so important for the
employee. A lawyer will have a good idea of what the
employee's claims are worth and how much money should be
paid in settlement.
Of course, not all mediations end in settlement. When this
happens, if the employee wants to pursue the claim against the
employer, the usual next step is that the EEOC or KHRC will
investigate the charge of discrimination and, most often, be
unable to determine if discrimination occurred or not. At that
point, a dismissal is issued and the employee receives the right
to sue letter.
The right to sue letter is critical in virtually all discrimination
cases except those based upon age. Under the Age
Discrimination in Employment Act (ADEA), a right to sue letter is
not needed before an employee can file a lawsuit, but a charge
still must be filed with the EEOC or the KHRC first.
Once the employee receives a right to sue letter, the employee
will have 90 days within which to file a lawsuit--most often in
federal court if the employee claimed that federal laws were
violated. If suit is not filed within 90 days, then there is a very
good chance that the employee will never be able to file suit
based upon the alleged discrimination.
cases except those based upon age. Under the Age
Discrimination in Employment Act (ADEA), a right to sue letter is
not needed before an employee can file a lawsuit, but a charge
still must be filed with the EEOC or the KHRC first.
Once the employee receives a right to sue letter, the employee
will have 90 days within which to file a lawsuit--most often in
federal court if the employee claimed that federal laws were
violated. If suit is not filed within 90 days, then there is a very
good chance that the employee will never be able to file suit
based upon the alleged discrimination.
