Let’s Ban Secret Sexual Harassment Settlements

BY DIANE DIMOND

What do the late Fox News CEO Roger Ailes, former Fox News host Bill O’Reilly, movie producer Harvey Weinstein, former President Bill Clinton, former House Speaker Dennis Hastert, comedian Bill Cosby and entertainer Michael Jackson have in common?

They all arranged to pay out beaucoup bucks to people who accused them of sexual assault or sexual harassment. They hired lawyers to draw up a secret settlement with the accuser, which included a promise that the accuser would never ever speak about what had occurred. In other words, these wealthy Americans were allowed to throw money at a problem to make a criminal or civil case disappear. With no complaining witness, there cannot be a trial.

Why is this allowed to happen in a country where there is supposed to be equal treatment under the law? And why do members of the American Bar Association agree to write up closed-door/closed-mouth nondisclosure agreements, or NDAs, that allow their clients to

circumvent the law?

Oh, those who open their wallets (or in some cases call on their insurance companies to pay for their so-called “negligence”) will say they offered the payout simply to spare everyone involved from the anxiety of a public trial. But we know the truth. These accused — who come from all walks of life, age groups and ethnic backgrounds — want desperately to keep their power base intact by making sure their ugliest sex secrets never become public knowledge.

State lawmakers are taking steps to void these NDAs if they are designed to cover up sexual harassment or sexual assault. California already has a law that prohibits confidentiality clauses drawn up in civil settlements to cover up felony sexual offenses. But in the wake of the Weinstein scandal, where a multitude of women have come forward

alleging egregious behaviors that might not rise to the felony level, there is a push to do more.

“We really need to remove the curtain of secrecy about what’s happening,” California state Sen. Connie Levya says. “Ultimately that’s what hurts victims and enables perpetrators to continue to do this and remain hidden.” She plans to introduce new legislation soon.

And in New York and New Jersey, lawmakers from both sides of the aisle agree these kinds of settlements should be a thing of the past.

“It was really the Roger Ailes sexual harassment charges that led me to introduce this bill,” New York state Sen. Brad Hoylman says of legislation he introduced earlier this year. His bill to ban confidential agreements that conceal illegal sexual behavior includes claims that go into the secret arbitration process.

It was former Fox News journalist Gretchen Carlson who first ignited the national conversation we’re having today about sexual intimidation in the workplace. She says she was demoted from her position on the  network’s highly rated morning program after refusing sexual advances from CEO Roger Ailes. Realizing the sexually tinged culture at Fox was condoned at the highest level, Carlson began recording incriminating conversations with Ailes. After Carlson’s lawyers filed a sexual harassment lawsuit, she accepted a reported $20 million settlement and got a public apology from the parent company. The NDA Carlson had to sign as part of her arbitration prohibits her from talking about the specifics of her ordeal.

“I could have filed my lawsuit and gone home,” Carlson told Variety. “But I’m not choosing to do that. I’m choosing to help other women who have reached out to me since this happened, to make a difference for them.”

Carlson has worked with nonprofit groups to spread the word about  sexual harassment. She also plans to testify before Congress to advocate change in the arbitration process and the elimination of clauses that prevent victims from seeking a jury trial. In her new book, “Be Fierce: Stop Harassment and Take Your Power Back,” she counsels women to keep a meticulous journal of harassing behaviors (not on your office computer) and to realize that an outside attorney can help more than the company’s human resources department.

“The first thing to understand is that HR’s primary role is to serve the business,” Carlson writes. If you are in need of guidance, she says to “seek it elsewhere” until you are ready to make an official complaint. The book is a must-read for those who feel powerless to fight back against sexual assault, sexual harassment or sexual intimidation.

There is a legal dichotomy surrounding these secret settlements. They  are standard practice, but there is a serious question raised when they are used to cover up a crime. In my book, scaring an accuser into silence is akin to witness tampering. And burying criminal activity under a pile of hush money smells like obstruction of justice.

Our legal system should no longer be used to shield sexual perpetrators from legal liability. These secret settlements aren’t made to clear up just one little misunderstanding. In each of the cases I’ve mentioned, there were multiple accusers. This corrupt status quo accomplishes only one thing: It allows serial sexual predators to roam free to victimize others.

Every state ought to follow the lead of California, New York and New Jersey and take immediate steps to outlaw this odious practice.