Sexual Harassment Settlements No Longer Confidential?
Harvey Weinstein. Matt Lauer. Kevin Spacey. Louis C.K.
Sexual harassment has become such a prevalent topic over the past year, that upon reading those four names above, most people can immediately figure out what all four individuals have in common – they have been accused of, and to some extent admitted to, sexual harassment and/or sexual abuse. A recent New York Times article has stated that following the sexual harassment allegations that were made against Weinstein, at least 71 other powerful men have been accused of sexual harassment and suffered serious repercussions, including terminations from jobs, being fired from movies and shows, losing endorsements or business relationships with popular brands and entities, removal from governmental positions, etc. Needless to say, it seems that in the celebrity world, even the most tenuous allegations of sexual harassment – whether true or not; whether supported by evidence or not – seem to be enough to cause the accused harassers to lose nearly everything they have spent their lives working for. It demonstrates how great of an effect allegations of sexual harassment can have when they go public.
Allegations of sexual harassment rarely have the same effect in the “real world” – or at least in Illinois. Not only do victims of sexual harassment have the burden of proving that their sexual harassment allegations have merit, but they must also prove that the sexual harassment they experienced was so severe and pervasive that it created a hostile work environment for the victim. That means that in some cases, once is not enough – which, for victims, is a tough pill to swallow.
When cases are brought, many employers immediately petition the courts for a protective order keeping all documents they provide in the case confidential, such that they are kept from the public. Then, if the case reaches a settlement prior to trial, the employer insists on keeping the settlement confidential. Indeed, confidentiality has become a standard term of nearly every settlement agreement, even though it primarily serves to protect the employer, not the victim.
One would think that sexual harassment – or any kind of harassment for that matter, including harassment based on race, gender, religion, age, etc. – would be taken more seriously by employers if employers could no longer hide behind confidentiality agreements and confidential settlements.
Enter: Massachusetts Sen. Elizabeth Warren and Nevada Rep. Jacky Rosen.
Warren and Rosen recently introduced legislation that would require public companies to publicly report allegations of sexual harassment and other types of harassment in the workplace.
If passed, Warren and Rosen’s legislation would require public companies to annually report the number of settlements they entered related to sexual harassment and the total amount of money spent on them. It would also require reports on settlements made based on complaints related to race, religion, sex, gender identity, genetic information, sexual orientation, national origin, disability, service-member status, or age discrimination.
The bill would also require the companies to report the “average length of time” for an employer to resolve a complaint regarding sexual harassment. But the bill specifically prohibits the disclosure of the names of employees involved in the settlements.
The legislation would cover contractors as well as other employees under the supervision of the public companies and include settlements made involving “the behavior of an employee … toward another such employee, without regard to whether that behavior occurred in the workplace.”
It would also require them to report the total number of complaints related to discrimination and harassment that are in the process of being resolved through internal processes or litigation.
Finally, the companies would be required to include a “description of the measures taken” to prevent employees from “committing or engaging” in abuse, harassment, or discrimination.
So it seems the “Me Too” movement has officially reached Congress.
If you or someone you know has been the victim of sexual harassment – or other workplace harassment or discrimination – please contact the Law Office of Jeffrey Friedman, P.C. at (312) 357-1431 for a free consultation.