Join us Feb 8, noon, at KCBA's office in Seattle to explore Sexual Harassment Issues in ADR. This memo includes background information useful for the discussion.
To: King County Bar Association
From: Marcella Fleming Reed, JD, SPHR, SHRM-SCP
Ashley Tam, J.D.
Date: February 8, 2018
Re: ADR Presentation – Sexual Harassment in the Workplace
The following is a list of articles or information pertinent to the King County Bar Association’s ADR presentation and roundtable discussion related to sexual harassment in the workplace:
I. How Legal Agreements Can Silence Victims of Workplace Sexual Assault, October 2017, Hiba Hafiz, Lecturer at University of Chicago School of Law
Article URL: https://www.theatlantic.com/business/archive/2017/10/legal-agreements-sexual-assault-ndas/543252/
• Under the National Labor Relations Act, employers are not allowed to prevent workers from talking about sexual harassment or even gender-inequity complaints at work or when they relate to work.
• Title VII of the Civil Rights Act, the federal law that protects employees from sexual harassment and sex discrimination at work, invalidates settlement agreements that prohibit settling employees from filing charges with or assisting the Equal Employment Opportunity Commission (EEOC) in its investigation of any sexual harassment charges.
• While nondisclosure agreements (NDAs) are unenforceable when used to silence workers’ discussion of sexual harassment at work and in legal claims, they can and are enforced to silence employees’ public speech.
• Government agencies, such as the EEOC, would need more resources to investigate and sue employers responsible for both sexual harassment and retaliations against employees for speaking out.
• Legal protections currently do not necessarily protect independent contractors or subcontractors.
II. Nondisclosure Agreements: Sexual Harassment and the Contract of Silence; November 2017; Annie Hill, Assistant Professor in Gender, Women, and Sexuality Studies at the University of Minnesota
Article URL: http://genderpolicyreport.umn.edu/nondisclosure-agreements-sexual-harassment-and-the-contract-of-silence/
• NDAs can be used pre-emptively and post-harassment to silence victims and threaten them with sanction for contractual breaches.
• U.S. federal law prohibits retaliation for reporting discrimination, yet NDAs offer legal routes to discourage victims from reporting harassment and sharing information with others.
• According to a 2002 decision by the National Labor Relations Board, Phoenix Transit System and Amalgamated Transit Union, employees have a right to discuss sexual harassment complaints among themselves and to engage in concerted activity, such as union organizing, to protect others.
• Victims speaking out is a necessary form of prevention because it exposes the pattern of abuse, warns others, and encourages people to come forward, including other victims and bystanders.
• Victims don’t speak out because:
o First, victims of harassment may fear that knowledge of a settlement will harm future job prospects by marking them as litigious or troublemakers;
Memo to King County Bar Association
o Second, employers and harassers might be less inclined to negotiate or pay a settlement if they cannot obtain an NDA, a situation that could diminish victims’ bargaining power in recovering damages;
o Third, sexual harassment stigmatizes victims and having what a harasser did made public can be embarrassing and harmful to victims.
III. How to End the Silence Around Sexual-Harassment Settlement; January 2018; Stephanie Russell-Kraft, The Nation
Article URL: https://www.thenation.com/article/how-to-end-the-silence-around-sexual-harassment-settlements/
• Confidentiality agreements in sexual-harassment and -discrimination claims have become standard practice, particularly in settlements between two parties with a large power disparity, like an employee and employer, a student and a university, or a powerful media mogul and a young actress.
• To address the harms that confidentiality requirements impose, lawmakers in a handful of states, including New York, New Jersey, and Pennsylvania, have floated bills to bar nondisclosure provisions in employment contracts and in settlements relating to claims of discrimination, retaliation, and harassment.
• A recent study by the Economic Policy Institute found that more than half of nonunion private-sector employees in the United States are currently subject to mandatory arbitration in disputes with their employers. Among large employers, the proportion is even higher. Between arbitration and pre-suit settlements, only a small fraction of workplace harassment claims are ever filed in court.
• Litigation may last for years and it’s very public.
• Low-wage workers, immigrant workers, and workers of color, who bear the brunt of workplace sexual assault and harassment, may find it difficult to find an attorney who is willing to take their case on a contingency basis.
• Removing confidentiality restrictions alone won’t create a database of harassment claims that can be searched by reporters or job seekers, and the onus is still on women to bring the problems of workplace sexual harassment to light.
• Sexual harassment as a public risk and safety hazard might also help litigators in the few states with so-called “sunshine in litigation” laws push back against confidentiality provisions in harassment settlements.
IV. How to Shut Down Workplace Sexual Harassment; January 2018; Rebecca Koenig, Staff Writer for U.S. News
Article URL: https://money.usnews.com/money/careers/company-culture/articles/how-to-shut-down-workplace-sexual-harassment
• General information about sexual harassment versus assault, governing laws, filing a claim with the EEOC (Good basis for understanding employment harassment).
V. Why Some Victims of Sexual Harassment Can’t Speak Out; November 2017; Sara Grimm and Sunlen Serfaty, CNN
Article URL: http://www.cnn.com/2017/11/24/politics/non-disclosure-agreements-sexual-harassment/index.html
• The Congressional Accountability Act, set up by Congress in 1995, was set up in part to deal with charges of sexual harassment, as well as other labor disputes within Congress, and does include some confidentiality provisions.
• According to the statute within the law, as an accuser takes their complaint through the process within the Office of Compliance (OOC), there is strict confidentiality in the counseling process, strict confidentiality in the second step, the mediation stage, and confidentiality is a bit looser in the hearing stage.
• "Taxpayers foot the bill and the harasser goes on with his or her life," Speier said during congressional hearings on the topic in November. "There is zero accountability and zero transparency. I might also add that during that process, the
victim can't even communicate that they are going through an OOC process to their family, to their friends or to anyone in their religious community. So it's really no wonder that staffers do not seek this process at all."
• “The roughly $27,000 settlement revealed by Buzzfeed against Conyers is an average settlement for Congressional cases,” Katz said, even though they are very low compared to the private sector.
VI. How to Pierce the Secrecy Around Sexual Harassment Cases; December 2017; Nitasha Tiku, Wired - Business
Article URL: https://www.wired.com/story/how-to-pierce-the-secrecy-around-sexual-harassment-cases/
• Even outside of a settlement, nondisclosure agreements have helped harassers evade accountability. NDAs are signed when hired.
• Some victims want the details to remain confidential, and forcing disclosure could lead to fewer, smaller settlements.
• Mike Delikat, head of Orrick’s Global Employment Law Practice, said, “Why would an O’Reilly pay that kind of money when the reason he’s paying is to avoid the potential destruction of his career and ability to make money?”
• Restrictions on confidentiality not unprecedented. EEOC can negotiate private settlements when it sues companies for labor violations, but settlements with state and local government must be public.
• If a victim knew her harasser was a repeat offender, she might go to the police, demand that the harasser be terminated, and ask for substantially more money.
VII. How NDAs Help Some Victims Come Forward Against Abuse; November 2017; Areva Martin, Motto
Article URL: http://motto.time.com/5039246/sexual-harassment-nda/
• Reasons employees may not come forward about harassment:
o There’s the fear of being retaliated against or ostracized by their employers, potential future employers, and even entire industries;
o There’s concern for how their friends and family might treat them differently, or might themselves suffer from unwanted attention;
o There’s the completely understandable aversion to undergoing a humiliating and demoralizing public trial;
o The cold reality is that defendants come after victims hard, smearing their reputations by casting them in whatever negative light they can, often accusing them of promiscuity, gold-digging, and flat-out lying;
o Private settlements protect victims from all the painful ugliness that comes with litigation in the public eye.
• There’s the matter of financial restitution — which has nothing to do with greed and everything to do with a victim’s ability to continue living without her paycheck, since she’s likely to have been forced out of her job, and to pursue any help she may need as she recovers. Bill O’Reilly allegedly paid $32 million dollars to settle a sexual harassment claim made by a Fox News analyst. Would he have settled at all, not to mention for that amount, without the promise that the story would remain confidential?
• The consequences of breaking an NDA, if the need to speak out overrules the need to honor the contract, is a calculated risk. Breaching such a contract can result in the loss of settlement money and gives the defendant the right to sue — but sometimes, speaking up comes out in the victim’s favor.
• There are some protections already in place for those who would speak out. States like California prohibit the use of confidentiality provisions if the underlying facts could be prosecuted as a felony sexual offense.
• Some states have similar laws that prohibit such agreements if they conceal facts related to a public hazard.
• And in Kalinauskas v. Wong, a 1997 sex discrimination case, the plaintiff was allowed to depose another woman who’d been harassed at the same company and signed a confidentiality agreement. The decision set a precedent used in future federal court decisions that confidential settlement agreements can be discoverable in litigation involving the same employer when similar facts are alleged.
• NDAs prevent the public from knowing about predatory conduct that harms us and stop government officials from being able to perform critical law enforcement duties that are designed to protect us. And by concealing sexual harassment and abuse, we lose the deterrent effect that results when we shine a light on offenders.
VIII. How Agencies Use NDAs to Hide Sexual Harassment Claims; December 2017; Shareen Pathak, Digiday
Article URL: https://digiday.com/marketing/agencies-use-ndas-hide-sexual-harassment-claims/
• Personal account of woman who signed NDA and later regretted it. Pros and cons.
IX. Lawyer: USAG Attempted to Silence Maroney on Nassar Abuse; December 2017; Amanda Turner for International Gymnas Magazine
• Maroney’s attorney, John Manly, cited the California Code of Civil Procedure that does not permit confidentiality clauses in settlements in cases involving acts that may be prosecuted as a felony sex offense.
• The new lawsuit filed by Manly...accuses USA Gymnastics (USAG) of violating the law by including the confidentiality clause as part of the settlement. The statute was amended January 1, 2017, to include potential disciplinary action for any attorney who demands a confidentiality clause in a case related to sexual abuse
of a minor, meaning that Gloria Allred (Maroney’s former attorney) and USAG’s attorneys would not face any sanctions for involvement in the settlement in December 2016.
• Maroney willingly signed the confidentiality agreement with USAG last year, but she was emotionally traumatized at the time.
• More than 130 people have now filed lawsuits related to assaults that team doctor Larry Nassar claimed were legitimate medical treatment.
• It has been alleged that MSU (Michigan State University) ignored repeated complaints against Nassar by his female patients as far back as 1997. The lawsuit alleges that Nassar, who was stripped of his medical license in April 2017, was a "known sexual predator" to MSU officials, who nevertheless allowed and encouraged him to travel nationally and internationally with minors, allegedly because of the prestige he brought to the faculty and athletic department. Personal account of woman who signed NDA and later regretted it. Pros and cons.
X. Microsoft Moves to End Secrecy In Sexual Harassment Claims; December 2017; Nick Wingfield and Jessica Silver-Greenberg, New York Times
Article URL: https://www.nytimes.com/2017/12/19/technology/microsoft-sexual-harassment-arbitration.html
• Senators are proposing legislation that would make forced arbitration in harassment cases unenforceable under federal law.
• Brad Smith, Microsoft’s president and chief legal officer, said eliminating the arbitration requirement for harassment claims by its own employees represented an immediate step the company could take while the Senate bill was being considered.
• The move is largely symbolic because only a minority of Microsoft workers — numbering in the hundreds in its senior ranks, according to Mr. Smith —have been subject to the requirement.
• Microsoft will still require those employees to take claims unrelated to harassment and gender discrimination to arbitration.
• In total, Microsoft has about 125,000 employees around the world.
XI. Proposed Legislation
There is proposed legislation in WA, CA, AZ, NY, PA, NJ that bans/limits NDAs in sexual harassment or assault cases.