Sunday, October 22, 2017
Congratulations to Minna Kotkin (Brooklyn) on her fine article in today's Washington Post on how confidentiality clauses in settlement agreements undermine the enforcement of Title VII's prohibition of sexual harassment. Here's an excerpt:
A secret about sexual harassment on the job is finally coming to light. It’s not that harassment is still rampant in some industries, recalling the worst of the “Mad Men” days. Or that networks of women quietly help to protect their co-workers from the worst offenders. The real secret is that our regulatory and judicial systems are complicit in protecting harassers from public exposure and opprobrium. Recent revelations about Bill O’Reilly, Roger Ailes and Harvey Weinstein show that they confidentially settled harassment claims in the millions of dollars over decades, using legal maneuvers to keep their conduct under the radar. How common is this?
Since 1986, when the Supreme Court first recognized that sexual harassment is a form of discrimination, employers and their attorneys have generally insisted that victims who receive financial settlements as a result of harassment allegations sign confidentiality agreements. In my three decades of research and litigation on harassment claims, corporate officials have always insisted that unless settlements are confidential, firms will be overwhelmed by a deluge of accusations, with every disgruntled employee looking for a payout.
A typical confidentiality clause prohibits the employee not only from revealing the amount paid to her but also from discussing the facts and allegations relating to the underlying events. Often, these clauses contain a “liquidated damages” provision: If the facts are revealed, the employee automatically owes the employer some astronomical sum. Liquidated damages generally include the amount paid in the settlement and sometimes much more, especially if the settlement amount was small. This keeps many victims of harassment from making their experiences known to others who might face the same dangers.
For the entire article, see How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment.