Alternative complaint systems can be an effective way for organizations to address and resolve harassment and discrimination disputes without resorting to formal legal channels.
More-collaborative approaches, such as ombuds offices and transformative mediation, can be used to strengthen organizational culture, resolve disputes amicably, and avoid costly and time-consuming litigation and turnover.
Research conducted by Harvard sociology professor Frank Dobbin and Tel Aviv University associate professor of sociology and anthropology Alexandra Kalev found that formal legal grievance processes are often ineffectual and even counterproductive for the following reasons:
- Half of discrimination and harassment complaints produce retaliation.
- Workers who complain of harassment have worse careers, mental health and physical health than those who experience similar levels of harassment but do not complain.
- Managers accused of discrimination are rarely sanctioned in any way.
- Accused harassers rarely are transferred or lose their jobs.
"There's a huge disincentive for employees to file formal complaints [with HR or the Equal Employment Opportunity Commission] because they know that the complaint procedure leads to retaliation more often than it does to successful mediation of the complaints," Dobbin said.
Dobbin and Kalev have identified ombuds offices and transformative mediation as two alternative complaint systems that have proven to be more effective at resolving harassment and discrimination complaints than formal legal processes.
"These complaint systems can play a critical role in reducing retaliation and providing fuel for organizational change," Dobbin said. "The ideal is to give people a menu of options."
"The legal system is adversarial. Ombuds and mediation are more-collaborative approaches that can cut through the red tape and lead to better resolutions," said Thyannda Mack, founder of Inclusive Resolutions, a diversity, equity and inclusion (DE&I) consulting firm in Chicago. "When there's a safe person [employees] can talk to, it can really be empowering and help organizations better address their concerns."
"The ombuds is a safe first step to understand what the person wants and what they are looking for," said Elizabeth Schwartz Hill, associate director of the Ombuds Office at the University of Colorado- Boulder. "A lot of the work involves listening. They help parties feel heard and come to some agreement."
At Pinterest in San Francisco, the ombuds office was created to address problems around harassment, discrimination and a hostile work environment. The program is headed by Donna Douglass Williams, who reports directly to the CEO and works closely with CHRO Christine Deputy to identify and address employee concerns and strengthen the tech company's organizational culture. Williams and Deputy agree that it is crucial for the ombuds to have a strong relationship with HR that includes a mutual understanding of each other's roles, best practices for working together and mechanisms for regular communication.
The four pillars of an ombuds program—confidentiality, impartiality, informality and independence—create the unique structure of the function and distinguish it from other resolution resources in the organization, Williams said.
"Confidentiality gives employees assurance that their conversations will remain private and that the ombuds will not intervene without permission," Williams said. "This gives employees space to talk through and explore options for resolution, gain perspective and consider the best ways to raise the issue."
The ombuds office does not investigate claims and there is no mandatory reporting system unless the employee requests it. The International Ombudsman Association cites the benefits of an organizational ombuds service.
Another popular option when facing a harassment or discrimination dispute is transformative mediation, "which works towards transforming the culture of the workplace so there is more room for people to voice concerns and trust that those concerns are going to be heard and understood," said Greg Grallo, founder and owner of Foundational Dialogues Mediation and Facilitation in Missoula, Mont. "When parties enter into the mediation process, they are all on equal terms. People aren't treated differently depending on what position they hold in the organization."
Mediators are trained to provide a supportive and neutral place in which to help people navigate challenges. "Your job is not to solve the problem. Your job is to create a space where they can solve the problem themselves," said Joanna Marroquin, program manager at the Center for Community Dialogue & Training, which is offered by Our Family Services in Tucson, Ariz.
"Recognition and empowerment are the two pillars of transformative mediation," said community dialogue specialist Christina Medvescek. "It is most often used when there are repeated patterns of harm, such as microaggressions, or when there is a severe critical incident."
Transformative mediation is often used to deal with issues that do not rise to the level of formal complaints or litigation but still cause hurt feelings, Grallo said. "The return on investment is a more harmonious workplace. People feel more invested because they feel more valued," he noted.
While working as a program manager at a nonprofit agency, Marroquin, who was 29 years old at the time, was repeatedly told by the director that she "was just a baby" or referred to as a "worker bee."
"It was a constant reminder of the power imbalance in the relationship," she said.
After completing the transformative mediation process together, they had a better understanding of each other that improved their working relationship over time. "It didn't change overnight, but it did help us set specific goals that were designed to improve our working relationship and hold each other accountable," Marroquin said.
"The nature of these conversations can lead to some genuine empathy and to some clarity about precisely what the employee experienced," said Dan Simon, founder of Simon Mediation in Minneapolis. "In the majority of cases, people get over the desire to file a formal complaint and can go back to working together."
Dobbin and Simon both cite REDRESS, the transformational mediation model at the United States Postal Service (USPS), as an example of a highly effective program. REDRESS, which stands for Resolve Employment Disputes, Reach Equitable Solutions Swiftly, is part of the equal employment opportunity complaint process that is offered at the informal counseling stage.
According to the USPS: "Transformative mediation is based on the belief that the disputing parties are best able to decide whether and how to resolve their dispute. Empowerment and recognition are emphasized—that is the mediation empowers the parties to effectively express themselves and encourages them to recognize the reasons for others' actions. It supports improved communication between supervisors and employees and avoids unnecessary litigation."
"Both approaches work well together and complement each other within a conflict resolution system," Hill said.
"They give employees an outlet to voice their concerns and show them that the organization cares about their concerns," said Sam Saks, a co-founding attorney at Guidant Law in Phoenix. "This helps build a culture of trust and prevents problems from becoming pervasive and escalating into formal complaints."
"As people return to the office, harassment is likely to increase," Dobbin said. If these incidents are not addressed and resolved, organizations can end up losing valued employees or become involved in costly litigation.
"The role of HR is to help employees understand how to utilize the resources that are available to them," Deputy said. "We offer employees a lot of doors and let them choose the door that's right for them."
Arlene S. Hirsch is a career counselor and author based in Chicago.