December 29, 2017
The past few months have been the among the most thought-provoking of my career. I am a litigator and employment lawyer who started practicing in the early 1980s when, for the first time in American history, women were entering the legal profession in large numbers. In law school, feminism was not a dirty word, Ruth Bader Ginsberg taught us civil procedure, and we marched down Fifth Avenue in support of the Equal Rights Amendment. But we were also taught the fundamental values of due process, standards of proof and rights of the accused. All of those lessons are now swirling around in the vortex that is the current sexual harassment /#MeToo debate.
My firm represents individuals and companies on “both sides” of the equation, so we have a lot of perspective on what is happening on the front lines. And what is happening is both a triumph and a tragedy. We are proud to represent employees who speak out against harassment by persons in power or who call out those who commit sexual assault. They are heroes and that their actions may effect a fundamental cultural shift is only to the good. On the other hand, we also assist individuals (and the companies that employ them) who have been falsely accused or who are being taken to task for a one-off social encounter that had nothing to do with the workplace or harassment. And in the current atmosphere, once there is an accusation, there seems to be little recourse. People have lost their jobs, their businesses and their reputation without any chance to defend themselves. Moreover the threat of public exposure now permeates the process, leading to knotty issues for all concerned about how or whether the claims or their resolutions should be kept quiet. This can also be a nightmare for company managers and Human Resources professionals who try to have the best interests of their colleagues at heart while at the same time having to balance company interests and needs in a highly pressured situation. It is difficult to find clear answers in such a turbulent and emotionally charged time. But our experience in the trenches has revealed some recurring themes.
Badly behaving leaders should not be enabled.
It is really not that hard to treat people with respect at work. And the higher one rises, the more of a role model one should be. But recent events have shown us that in some instances power leads to a really jaw-dropping sense of entitlement—that because one founded the company or made it hundreds of millions of dollars, it is somehow OK to take off one’s clothes in front of a subordinate or text colleagues pictures of intimate body parts. The rule should be if a leader does engage in this kind of behavior, then corporate counsel or the board of directors should step in to end the problem, not exacerbate it by, for example, funding settlements with shareholder money.
Companies are not courtrooms so don’t expect due process.
In the context of actual criminal or civil claims of harassment, there is a legal process to be followed. Claims have to be brought within a specified time period, there are mechanisms for finding out the facts, and a neutral party like a judge or jury ultimately determines the issues in accordance with rules of evidence. All of that goes out the window when the harassment claims are determined by the employer. The company’s representatives’ job is to protect the company. Human Resources departments are charged with managing risk, not dispensing justice. In some instances this means getting rid of the problem as quickly as possible before everyone has a chance to tell their story. This may prejudice both the accuser, who may be shunted aside without a remedy, and the accused who may not have an opportunity to respond to the claims before getting fired.
A confidentiality agreement can protect the victim as well as the accused.
There has been a lot of talk recently about how employers are “silencing” the sexual harassment victims by forcing them to enter into confidentiality or non-disparagement agreements, thus keeping the bad behavior a secret from the other current or prospective employees. There is even proposed legislation to ban such agreements. While blanket non-disclosure requirements as a condition of employment are certainly problematic, there is a place for confidentiality in the context of settlement of harassment claims, particularly in the workplace arena. As a practical matter, avoiding publicity is a major reason why employers agree to settle in the first place, and without a promise of confidentiality, a quick resolution would be very difficult to obtain. Moreover, most of our clients who have been harassed want their privacy protected as well. They would like to be able to move on, perhaps get another job, without having their name come up on Google as an accuser or a victim. Some of them also want protection against the harasser or employer publicly discussing their claims in order to embarrass or discredit them. In sum, confidentiality agreements can protect both sides as well as the company or institution involved.
All of this costs money.
No one likes to pay lawyers. A claim of sexual harassment is a serious matter, however, which can have implications far beyond the workplace. Given the stakes–the loss of livelihood, risk of publicity and the possibility of civil or even criminal action, it is important that the involved parties have adequate legal representation. For the most part, employers do not pay their employees’ legal fees unless they are being indemnified for actions taken in the course of the employees’ employment. Thus victims who would like to have help in bringing a claim are often discouraged from doing so because of cost. On the other side, persons accused of sexual harassment, particularly lower level (non-union) employees usually have to pay out of pocket if they want independent representation in, for example, the employer’s internal investigation.
What our experience has shown is that the mechanisms in place to deal with sexual harassment claims have flaws. Bringing a formal claim before the EEOC, the state equivalent or in court can be an expensive and lengthy process and may not be appropriate for every case. The alternative is relying on the employer’s internal procedures, which vary greatly in quality or fairness, are designed to protect the employer from legal risk and may impose significant legal costs on the employee.
The good news is that there is new momentum to examine the process and come up with creative solutions. One idea, analogous to a union grievance procedure, is to have an independent (industry-funded) tribunal investigate, mediate (or arbitrate) the claims, with the affected individuals being provided with counsel free of charge. Another mechanism, recently proposed in the theater industry, is a confidential voluntary mediation program. Certainly we can do more to come up with procedures that take advantage of the cultural changes in the air and lead to a safer and more civilized workplace.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. For more information regarding employment law, please contact RPJ Partner Alice K. Jump, who is a part of the firm’s litigation group and counsels clients on employment, real estate, corporate and business matters. Ms. Jump is admitted to practice in New York and before the U.S. District Courts for the Southern and Eastern Districts of New York and the U.S. Court of Appeals for the Second Circuit.