Cain and Thomas: Confidentiality and Sexual Harrassment Settlements

Thursday, November 03, 2011

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, CUNY Law Professor Rick Rossein talks about sexual harassment settlements in light of the accusations against Herman Cain from his days as head of the National Restaurant Association. 

Herman Cain claims that he can’t remember signing a sexual harassment settlement with the women now charging him with inappropriate sexual conduct, and the women themselves have been reluctant to come forward because they are bound by confidentiality agreements. But why are victims so frequently bound by law not to tell their stories?  

Rossein said most often it is the employer who pushes to have a confidentiality agreement as part of the settlement. Usually, when a person files a complaint of sexual harassment, the employer responds with two main goals in mind: First, they want to avoid any negative publicity, and second, they want to discourage other employees from filing complaints, either because they see it as newly possible or as potentially lucrative. 

Rossein said sometimes the accusers themselves may desire confidentiality, as they may have concerns that future employers might discriminate against them if it is known they filed a complaint. Regardless, Rossein said confidentiality contracts are nearly universal in these situations. “I would say probably 90 – 98 percent of the time.”

One of the women charging that Cain harassed them has said through her lawyer that she would like to issue a statement, but does not want to go public with her version of events in minute detail, because she “has a life to live and a career and doesn’t want to become another Anita Hill.”

Professor Anita Hill’s case is a valid point of reference for these women. Twenty years ago she famously accused Supreme Court Justice Clarence Thomas of sexual harassment. Rossein said that accusation led to tremendous disruption in Hill’s life.

We look at her life and how miserable it was for a number of years. She’s recovered terrifically, but there are countervailing issues here.

Yet Rossein thinks that the women may eventually need to disclose their story in order to fully address the charges.

It comes down to credibility issues, and without the full airing of the complaint it would be unfair to Mister Cain if only part of the story comes out.

Rossein said it’s likely that the woman’s identity will become known anyway, since other employees at the time were probably aware of the situation, at least to some degree.

Interestingly, some of Cain's hemming-and-hawing may not just be out of fear that these accusations could hurt his campaign. Rossein said confidentiality agreements apply to both the accuser and the accused, so Cain, too, may not be allowed to discuss the incident. If he is bound by the agreement, he too might need to seek permission from the National Restaurant Association, his employer at the time, though that would depend on the terms of the agreement. 

One thing is for sure—we'll be hearing a lot more about this as the campaign continues.


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Comments [22]

Jack Jackson from Centra New Jersey

Given the spectrum of behaviors, I think it is possible to be accused of sexual harassment when you had no such intention...once. But three times where your organization had to settle. That's a little hard to buy without A LOT of explaining.

Nov. 08 2011 08:30 AM
Anne from Michigan

Thanks, Jane, for your comment. I was sexually harassed about a decade ago. I am an academic. I did not sign a confidentiality agreement - none was presented as part of the process. I have written about the experience, but I changed everyone's name to ensure that I wasn't sued for defamation. That's another trick used to silence victims of harassment. If you are in the position of having to go forward and file suit - expensive, time-consuming, damaging to your career - versus taking a settlement and remaining silent, I completely understand why someone would take the latter course of action. But, I want to address another problem with these agreements. They send the following message: this is a dispute between two people - the alleged harasser and the victim. But, the research on harsassment shows that the predictors of harassment are organizational, not individual. The agreement sends the message that a "private" dispute has been resolved, as if it is two parties fighting over some contractual right. But, the organization is part of the dispute - its interests are aligned with those of the harasser since it is the harasser's behavior, not the victim's, that creates potential liability for the organization. Confidentiality agreements reinforce the idea that this was a "private" matter and that other employees have no interest in learning of the dispute's resolution. But, if the harassment stems from management decisions about tolerating workplace harassment, then why is this a "private" matter between two employees? What organizational change is contemplated to deal with the culture that fostered the harassment? We don't know because the issue is framed as an individual private matter to be settled financially, rather than organizationally.

Nov. 04 2011 12:38 PM
Palisades from Westchester County

Well said, Jane. You rock.
We cannot expect most people to be as courageous and resilient as you are, especially those in lower-paying jobs who are probably more easily intimidated.
Where are the feminists on this issue?
Why aren't we calling people out on this?
It really is mostly male-on-female sexual harassment that occurs, and companies tolerate it, cover it up and turn a blind eye.
We need to empower women to simply say, "Hey, that's not professional" or "Knock it off" easily and often. That's usually enough to make the harasser move on. We need to raise our young men that behaving respectfully toward women says as much about them selves as it does about women.
Brian Lehrer Show, please revisit this subject!

Nov. 03 2011 12:10 PM
Jane here from Long Island

Let me add (I was the caller...) that I could have taken the hush money and lived with that too. Each claimant is facing their own particular situation, and for me it could have gone either way. I'm glad I did what I did, but no shame in settling, either.

But the mediator who called in and said that confidentiality is good for the claimant -- still pisses me off. Privacy and discretion is good for the claimant. Let HER decide if she wants to speak about it. But confidentiality clauses disempower her for the rest of her life. She can't talk about -- well, for me it was a major life event, set me back financially, professionally, emotionally... To not be able to talk as freely as I wished, because OTHER PEOPLE, representing my harasser, are silencing me????? Not such a good thing.

Nov. 03 2011 11:40 AM

Any one do consulting in manhattan with a lot of companies? It can't me only me that has run into millionaire after millionaire who are running on complete BS 90% of the time, making money only because they have money. I made a lot of money off of these people, until I started to think about how crappy the whole situation was.

Nov. 03 2011 10:59 AM
The Truth from Becky

Ha Haaaa I bet Cain thought he was going to sail to the top! NOT

Nov. 03 2011 10:54 AM
Palisades from Westchester County

THIS MAKES ME SO MAD! The whole issue smacks of misogyny. Companies should be HAPPY to hear complaints about sexual harassment (or any harassment) because it helps them maintain a safe and ethical workplace. But let's face it: Human Resources job is to protect upper management, not to enforce decent behavior.
That a woman would be discriminated against in being hired because she complains is untenable: would an employer be reluctant to hire her if she had pressed charges against someone who robbed her? Of course not.
Further, women who are telling the truth about sexually harassment usually just want it to stop. Money is not the goal. I believe that victims of sexual harassment should be automatically released from their part of the agreement should the harasser be charged again, or should the issue be made public through no fault of the victim's.
Why aren't we speaking out against harassment? Why aren't we protecting girls and women, and educating everyone about what is acceptable behavior?
I worked in corporate America for many years and knew of many incidents of S.H. One woman remains my hero: when she was left alone in a room with a man who tried to grab her, she immediately left the room and told anyone who would listen about it. She told everyone who wouldn't listen. She went on and on for about two weeks, and many of us approached the guy, saying, "What were you thinking?"
The instant shame and outcry was tremendous (and even a bit humorous). The guy never quite mustered a response.
It was a powerful deterrent and became legend.
I don't think most women would have the courage that this one woman did, but I will never forget her.

Nov. 03 2011 10:44 AM
John A.

jgarbuz: Yes.

Nov. 03 2011 10:38 AM
Amy from Manhattan

If Mr. Rossein acknowledges that the last caller's point is important, why didn't he bring it up himself?

Nov. 03 2011 10:33 AM
C from Brooklyn, NY

Thank you Jane! I just heard you on the Brian Lehrer. I really command your courage to call in and tell us about what happened to you.

Nov. 03 2011 10:32 AM
jgarbuz from Queens

Would a boss or manager asking his or her employee or subordinate for a date be considered sexual harassment?

Nov. 03 2011 10:31 AM
John A.

Stop using pure woman-offended man-offender bias. The news last night said that 1/6 of cases were male.

Nov. 03 2011 10:31 AM
Chris from Kensington

Confidentiality agreements are a common, if not standard, part of all out-of-court settlements. They are NOT limited to sexual harassment cases and they are NOT gag orders. Any litigant -- including those accused of sexual harassment -- are entitled to put these things behind them if they have negotiated a settlement to their case. That's why it's called a "full and final settlement" -- so that things are *settled*.

Nov. 03 2011 10:31 AM
MP from Brooklyn

Your last caller was incredibly powerful - I salute her for refusing to sell her freedom to speak.

Nov. 03 2011 10:30 AM
khadija from brooklyn

the underlying threat is: you are fired; you're gonna sue; and I am bigger than you. I will destroy YOU!

Nov. 03 2011 10:30 AM

We know that Michael Bloomberg also settled harrassment claims. Very wealthy men abuse their power -- well-established pattern. Why they get a pass because they can buy off their victims is beyond me.

Nov. 03 2011 10:27 AM
jgarbuz from Queens

Could your legal expert tell us exactly what are the precise legal parameters of what is meant by "sexual harassment?" These broad brush laws that came into existence in relatively recent times appear to be rather vague and general.

Nov. 03 2011 10:27 AM

Eliot Spitzer -- who was _not_ charged with harrassment -- was not judged on his policy. Bill Clinton -- who was _not_ charged with harrassment -- was not judged on his policy as Republicans sought impeachment.

Yet again, we see the double-standard where right-wing bigots get a pass from the press and Democrats are vilified.

Nov. 03 2011 10:24 AM
Amy from Manhattan

Women sign confidentiality agreements because they don't want their names made public & because it might affect their ability to get hired? I can understand that, but isn't it ever because they're up against a company w/the resources to drag out the lawsuit & make her use up all her money long before the case would be decided in court?

Nov. 03 2011 10:21 AM
ben from manhattan

So.. these settlements are so common to cain that he can't remember when he signed off on one?

Nov. 03 2011 10:21 AM
khadija from brooklyn

To my understanding, there is a "sunset" to confidence machin chouette chose.

Nov. 03 2011 10:19 AM
Bob Moore from Manhattan

More egregious than the sexual harrassmne agreements are the confidentiality agreements signed by those who have suffered from fracking. Not having access to these agreements has hampered the EPA and others finding out the real facts.

Nov. 03 2011 10:19 AM

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