IS LITIGATION YOUR FINAL ANSWER? 701
employment discrimination law, argued that the law gave “little
notice” of what constituted sexual harassment speech.^149 Indeed,
much of sexual harassment case law has revolved around
defining the kind of “conduct” that would create a sexually
hostile environment.^150 Similarly, in the workplace-bullying
context, contemporary scholars and commentators face the
challenge of defining what constitutes “abusive conduct” that
would create a status-blind hostile work environment claim.
Unfortunately, unlike sexual harassment, workplace bullying
has not received federal statutory or judicial recognition.^151 The
first necessary step towards achieving this goal is to pass state
legislation and allow courts to interpret the law. In order to pass
the legislation, however, drafters must make the Healthy
Workplace Bill more palatable to gain sufficient support.
Therefore, rather than creating a sole private right of action,
drafters should include an ADR provision in the Healthy
Workplace Bill, which would provide a more cost-effective and
efficient alternative to an expensive and prolonged lawsuit that
neither the employer nor the employee wants.
A. ADR: A Brief OverviewADR processes are methods of dispute resolution that take
place outside of courts.^152 Forms of ADR include negotiation,
arbitration, mediation, summary jury trial, mini trial, and early
neutral evaluation.^153 The goals behind ADR are to reduce court
congestion, minimize cost and delay, tailor a dispute resolution
process to the unique needs of each party, facilitate access to
justice, and utilize a collaborative approach to dispute
(^149) Id. at 408 (quoting Kingsley R. Browne, Title VII as Censorship:
Hostile-Environment Harassment and the First Amendment, 52 OHIO ST. L.J.
481, 502 (1991)).
(^150) See id. at 416–17.
(^151) See supra Part III.
(^152) See LEONARD L. RISKIN ET AL., DISPUTE RESOLUTION AND LAWYERS
1–2 (abridged 4th ed., 2009). For further discussion and analysis of ADR
processes, see generally id.
(^153) See id. at 14–16.