Weinstein, Ailes, Uber: Coming Forward with Sexual Harassment Claims
Recent headlines are rife with salacious stories of powerful men sexually harassing female subordinates in the workplace. But what is even more troubling to me than the details of the predatory behavior, is the complicity of co-workers, supervisors, senior executives and even outside Board members in keeping the allegations private so that business can continue as usual. This culture of sweeping things under the rug and prioritizing the status quo greatly inhibits the ability to make positive, real change in this area.
Women will only have the courage to come forward with their claims of sexual harassment if they are confident that they won’t be retaliated against for reporting the incident. How can a woman be so sure of this? It is only when they can see that other women who have reported harassment in the past suffered no adverse employment consequences, such as demotion or termination. This type of transparency is impossible when a company forces its employees to sign a mandatory arbitration clause or agreement that prohibits the employee from disclosing the fact of and details of the case.
With an arbitration agreement, the employee who brings a sexual harassment claim is prevented from bringing the case to a court of law, often in front of a jury of her peers. Arbitration agreements are very popular with employers who hope that they will resolve employment disputes more quickly and less expensively than litigation. Yet, as Gretchen Carlson explains in her recent NYTimes op ed piece these arbitration clauses overwhelmingly benefit employers since, studies show that many arbitrators find in favor of the employer and not the employee. Moreover, even if an employee does prevail in arbitration they are bound by confidentiality provisions not to reveal their claims. This will also benefit the employer since it can continue to protect the harasser. Conversely, when an employee prevails in a judicial setting, the decision is part of a public record. Public disclosure would likely prompt a company to take appropriate remedial measures to address the harassment and the harasser. Women can then more confidently rely on Company assurances that no retaliation will occur upon a report of sexual harassment.
Confidentiality provisions are appropriate in the pre-litigation settlement context where neither the victim or the alleged harasser have had a chance to call witnesses and the claims adjudicated in accordance with the applicable legal standard of review.