October 29, 2018
Advocates for the rights of victims of sexual harassment have battled against practices that restrict public disclosure of misconduct by offenders. Conditioning settlements in sexual harassment cases on the victim agreeing to a non-disclosure provision a settlement agreement and the inclusion of a mandatory arbitration clause in employment contracts are two methods corporations and other powerful organizations have used to silence sexual harassment victims. Great strides have been made toward increasing public awareness of this issue, but legislative efforts in California to eliminate the practices have so far met with only limited success.
Confidentiality Stifles Awareness of the Extent of Sexual Harassment
The extent to which women in America are subjected to sexual harassment at their places of employment is shocking. The results of a Washington Post-ABC News poll showed that 33 million women were subjected to sexual harassment at work and another 14 million confided to being the victims of conduct amounting to sexual abuse.
When a victim comes forward to pursue a complaint against an abuser, quick monetary settlement coupled with a non-disclosure or confidentiality clause has the effect of shielding the offender from the public eye. For example, a corporation confronted by a sexual harassment complaint by a worker against her supervisor might reach a quick settlement, but other workers are prevented from learning about the risks posed by the supervisor because the victim is forced by a confidentiality clause to remain silent or risk substantial penalties.
The penalties exacted by non-disclosure agreements can be enormous. When the story broke about the sexual abuse of members of some of the women on the U.S. Olympic gymnastics team by a doctor, it was revealed that disclosure by one of them of a settlement previously reached with USA Gymnastics would have subjected the gymnast to a $100,000 penalty.
Legislators in California tackled the issue of sexual harassment settlements that contain language compelling the victim to remain silent as a condition of receiving compensation. SB 820, which was passed by the legislature and approved by the governor, prohibits the inclusion of such restrictions in settlements entered into on or after January 1, 2019.
Secrecy Prevails Through Mandatory Arbitration Clauses in Employment Contracts
It is estimated that more than half of American workers are subject to mandatory arbitration clauses in their employment contracts. These clauses require workers to submit disputes arising through their employment, including claims for sexual harassment, to mandatory arbitration instead of resorting to the court system to resolve them.
Mandatory arbitration benefits employers by avoiding public disclosure of complaints. Complaints are submitted to an arbitrator hired for the arbitration proceeding with all proceedings handled privately as opposed to court proceedings that are open to the public.
Media attention focused on mandatory arbitration clauses when sexual harassment allegations were made against the head of the Fox network. Gretchen Carlson went public about mandatory arbitration clauses being used to shield offenders from public scrutiny.
The California legislature’s efforts to ban the inclusion of mandatory arbitration clauses in employment contracts resulted in passage of AB 3080. The legislation recognized the fact that a newly hired employee is at a disadvantage when presented by an employment contract containing an arbitration clause. The situation for most people is to either accept the agreement as presented or not be hired for the position.
Although passed by the legislature, AB 3080 did not become law in California. The governor refused to approve the legislation, so employers in the state may continue the practice of including mandatory arbitration clauses in their employment agreements. The only recourse for an employee presented with an employment contract is to contact an attorney experienced in employment law and sexual harassment claims for legal advice and representation.
The dedicated attorneys at The Cifarelli Law Firm, LLP, have been aggressively pursuing claims for victims of sexual harassment and sexual abuse for more than 25 years. Our knowledge of the law and experience allow us to develop innovative strategies to obtain maximum compensation for our clients. Contact us today by calling (949) 502-8600 or use the form on our website to schedule a free and confidential consultation.