To End Sexual Harassment in Workplace, End Confidential Settlements

Twenty-six years ago last month, my husband and I went to dinner with five other couples. The country had just come off a turbulent week watching the Clarence Thomas Supreme Court confirmation hearings, dominated by Anita Hill accusing Thomas of sexual harassment in the workplace.

Everyone was reflecting on appropriate behavior in the workplace — with one exception, George (not his real name) who was seated across from me. George was CEO of a 100-year old firm, had a reputation as a womanizer and, to my knowledge, had lost at least two harassment lawsuits naming him as the offender. To everyone’s irritation, George carried on all night long like the victim himself, “I just don’t know where the line is anymore. I can’t tell my secretary she has a pretty suit on because she’ll sue me. I can’t tell my accountant she looks nice because she’ll sue me.”

Finally, over dessert, the table fell silent when I interrupted him, “George! You know where the line is. You have always known where the line is. Now, for the first time, you are going to have to pay attention to that line.”

He stared at me and, to his credit, sheepishly replied, “You’re right, Nan. I know where the line is.”

Fast forward to today’s exploding workplace sexual harassment charges against another high-profile individual, Hollywood producer Harvey Weinstein. History doesn’t repeat itself. We repeat history.

We have made progress, however, in both awareness and handling of unlawful harassment in the workplace today. We have discrimination and anti-harassment laws with teeth, company guidelines and training in place along with a promise of a safe environment and nonretaliation rights. We now acknowledge that sexual harassment is an actionable civil (and sometimes criminal) offense. But, the Weinstein debacle tells us we need to notch up this progress.

Most employees are still unaware of how to respond — on the spot — when confronted with harassing behavior. This is understandable because they are suddenly blindsided, shocked and knocked off guard when it happens and sometimes by someone in a greater position of power.

What To Do

Brooke Baldwin, CNN host, recently silenced the microphone of Clay Travis, Fox Sports Radio host, when he made an offensive opening statement on her show. A stunned Baldwin cut him off. Unfortunately, most of us don’t have a mike to shut off when confronted with an inappropriate remark or request.

But, we do have these words, “I can’t believe you did/said that, and in the workplace besides!” — as an immediate, direct showstopper response. Silence is not an option.

This leaves no question about your reaction. You have put the harasser on point and most likely stopped any further action. If the behavior continues, however, nail it again, “This is sexual harassment and I am filing a complaint.” Then do so.

Conversely, the worst response a harasser can give when his/her behavior is challenged is, “What’s the matter — can’t you take a joke?” Or, “Don’t you have a sense of humor?” These demeaning, patronizing words only double down the harassment.

No professional can operate with blinders on today. This includes witnessing misbehavior. Although you are not required by law, you have a responsibility to immediately call such behavior to the attention of management. And, if you are management, there is liability when you knew or should have known of the objectionable conduct. The objective here, no matter your position in the company, is to stop unlawful harassing behavior in the most constructive way possible. Hollywood director Quentin Tarantino, who had worked with Weinstein on many projects over the years, said, “I knew enough to do more than I did!”

Real change, however, will not occur until we eliminate the confidentiality and non-disparagement provisions commonly tied to an out-of-court settlement. These “gag order” arrangements handcuff the harassed party from ever speaking of the issue or disparaging the defendant and/or company without having to repay the settlement. Reportedly, Weinstein had eight such undisclosed settlements.

The benefit to this arrangement is the victim may reach a better settlement offered in exchange for silence — avoiding a court hearing and the accompanying exposure and stress of ongoing publicity. The detriment, though, is that the perpetrator remains with the company and the (maybe even serial) behavior may continue, putting others at risk.

These secrecy settlements are occurring daily resulting in the paid-for anonymity and confidentiality of harassing behavior. Maybe it will take more plaintiffs to stand up and say “no” to an out-of-court settlement offer and roll the dice in an exposed courtroom hearing before we start making major changes in curbing unlawful harassment. It will take a toll on plaintiffs’ privacy and emotions, and they would be gambling on the outcome because defendants will have no incentive to settle. However, full transparency of offenders and future protection of potential victims may be well worth the sacrifice.

And, we will surely weaken the hollow defense, “I don’t know where the line is.”

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