Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, November 27, 2017

Systemic Solutions for Sexual Harassment: Legislation and Insurance Industry Change

Marci Hamilton, Listen Up: There is a Solution to the Sex Abuse and Harassment Epidemic Unfolding Before Your Eyes--and You will be Surprised at Who Must Step Up to Succeed 

There has been intense media coverage but surprisingly little if any attention paid to the experts on sex abuse, assault and harassment, who could inject facts into the discourse. There is actually a science of child sex abuse and sex assault. Instead, there has been a lot of hand-wringing by those who do not labor in this vineyard, and over-politicization of the issues to the point that you can’t see what you need to see. When a cable news show staffs its “panel of experts” to discuss these cases solely with political reporters and pundits, they are missing the mark.

 

There is a systemic solution to the sexual misconduct pandemic, and it requires the insurance industry to step up. The vast majority of these claims are in the civil arena, because so few prosecutions go forward with the “beyond a reasonable doubt standard.” (Prosecutors are elected officials who watch their win-loss ratios closely. The public would be shocked by how few of the cases involving sexual abuse and assault are ever prosecuted despite strong evidence, but that is another column for another day.) That puts the insurance system on center stage due to its power to coerce better practices with the threat of no or escalating coverage. It has been no friend to victims as it has implemented non-disclosure agreements, intimidated victims, and avidly lobbied against statute of limitations reform.

 

If the industry declines to reform its predator-friendly practices, it’s time for hearings on Capitol Hill, which would supplement the recent hearings to enact legislation and rules to govern sexual harassment in Congress. They should probably happen anyway, but if there is no major insurance reform to solve the problem, there is no choice but to subpoena the executives. In all likelihood, Congress and the state legislatures will need to coerce them to do the right thing. The insurance industry has the power to turn around at least the workplace on these issues if it starts demanding the kind of preventative practices only it can effectively enforce and punishes those who harbor perpetrators with escalating premiums and the threat of no coverage.

 

With respect to members of Congress, it’s not the insurance world that matters, but rather a corrupt federal system ensconced in federal law. Interestingly, it needs the same fixes as the insurance industry, though, so I will include it in the discussion below.

 

Here is where we need to start to bring industries, institutions, and Congress into line:

 

First, non-disclosure agreements in sexual misconduct cases violate public policy and should be made unenforceable. While it is reasonable to permit the parties to agree that the settlement number is confidential, the perpetrator and/or entity should not be permitted to gag the victim. Non-disclosure agreements have been the darlings of the insurance companies and a mandatory feature of the federal system. The congressional victim has one route: to enter a lengthy and dysfunctional process at the end of which, if there is a settlement, secrecy is forced on her.

 

I would expect the insurance industry to sic its lobbyists on members contemplating a paradigm shift in this arena and to fight any bill that neutralizes nondisclosure clauses. But this is one of those instances where the public disclosure is so obviously in the common good that lawmakers need to put cotton in their ears. Besides, perhaps my cynical expectation that the industry (and members of Congress) will fight for nondisclosure agreements to the detriment of the common good is misplaced. One can hope daily scandals will guide the industry and federal government to a moral compass that points toward policies that protect the vulnerable rather than the predators and their complicit institutions.

 

Second, eliminate the SOLs for sex abuse, assault, and harassment. Let the victims come forward when they are ready, not according to some artificial deadline. 99% of the women who have come forward against the list of men at the start of this article were barred from the judicial process. This is a cause the insurance companies have been fighting for decades—against their better interests. They don’t want SOLs to open up, because more perpetrators and at-fault institutions named, which increases their liability. Yet, it’s better for them to permit the SOLs to be liberalized, because it concretizes their liabilities and makes it possible to demand that a perpetrator be fired so that they can avoid future liability. With short SOLs, the cycle of misconduct, settlement, misconduct, settlement remains in place, which does not serve the industry’s ultimate ends.

 

Third, insurance companies (and Congress) need to institute workplace rules with teeth that are a pre-condition to coverage and/or service that halt the secrecy spiral:

  • To qualify for coverage or to maintain one’s status in Congress, there should be mandatory training, as in real training conducted by professionals and not in-house people, on the rules of sexual misconduct from abuse and assault to harassment. It should be made clear that no one gets a pass—not the perpetrator and not the bystander, or observer. There should be mandatory reporting internally and to the authorities when a crime has occurred. Reporters must be shielded from retaliation.
  • Employers and Congress should be required to pledge to discharge any employee who has engaged in sexual misconduct, and that determination follows an investigation. Recommendations for other jobs would be required to disclose the sexual misconduct. Failure to disclose would create liability for the company that discharged the predator.
  • Employers and Congress must institute meaningful zero tolerance policies for sexual misconduct that are worth the paper they are written on. Most companies have pro forma policies but in practice, as we have learned, supervisors are wont to ignore allegations if the man serves the organization’s interests, whether it be image, power, or money. If it turns out a company’s supervisor learned about sexual misconduct and ignored it, that should come with the heavy price of steeply increased premiums. The member of Congress who fails to disclose knowledge of sexual misconduct should be subject to mandatory censure.
  • There need to be annual sexual misconduct audits. If there is reason to be suspicious, the insurance company (or relevant committee in Congress) must investigate all allegations with special focus on any cover-up. Results are to be released to the public, not buried.
  • Policies related to off-premises business or institution-related activities need to be tightened up. If the employee is performing work for the organization or in its name off-premises, as was Charlie Rose at his home, the company should be liable for any misconduct and the insurance company on the hook. There need to be rigid rules about work off-premises (other than flex-time when there is no employee interaction). Charlie Rose’s and Weinstein’s off-premises activities couldn’t have happened but for the environment. They weren’t going to parade around nude and uncovered at work.

 

Fourth, as I discussed here, the defamation laws need to be rewritten to protect the victim who goes public. None of these guys should be permitted to rattle the saber of defamation like Cosby, Trump, or Moore. The first order of business in any such claim should be an expedited proceeding on the facts of the sexual misconduct. If the victim proves the acts occurred to a preponderance of the evidence, the perpetrator should be liable for treble damages and attorneys fees. The remedy will deter such lawsuits except for the most narcissistic predators.

http://lawprofessors.typepad.com/gender_law/2017/11/systemic-solutions-for-sexual-harassment-legislation-and-insurance-industry-change.html

Equal Employment | Permalink

Comments

Post a comment