October 21st, 2017

Out-of-court settlement of sexual harassment suits: what does it mean?

That’s a topic that’s certainly been in the news lately. Harvey Weinstein’s company apparently factored it into his contract and instituted a stepped series of penalties Weinstein would have to pay for for sexual harassments lawsuits that were settled.

And now comes the news that Fox News signed a contract with Bill O’Reilly shortly after O’Reilly had settled a $32 million lawsuit:

Although the deal has not been previously made public, the network’s parent company, 21st Century Fox, acknowledges that it was aware of the woman’s complaints about Mr. O’Reilly. They included allegations of repeated harassment, a nonconsensual sexual relationship and the sending of gay pornography and other sexually explicit material to her, according to the people briefed on the matter.

To most people, these contracts seem unconscionable, a winking at the predations of men who prey unashamedly on women and take advantage of their own positions of greater power. And perhaps they are, particularly the Weinstein contract because—although we cannot know for sure because no one has ever published the exact language of the contract—it is rumored to have been operative even if Weinstein was found guilty by a court, as opposed to mere out-of-court settlements.

But I would remind everyone that out-of-court settlements are not admissions of guilt, although they’re popularly thought to be. Sometimes, of course, they are, and if a person is accused over and over in a pattern that seems to be similar enough to establish an m.o., it’s reasonable to think that all that smoke is indicative of a pretty big fire as well. But maybe not; one can ‘t be sure. And that’s why companies are not necessarily winking at sexual abuse if they are keeping someone on who has settled such an agreement out of court, or if the company itself does so.

Falso accusations do occur—although we have every reason to believe they are not occurring in the cases of Weinstein and O’Reilly. Just to balance things out even more, I’ll add the case of Bill Clinton and Paula Jones, to whom a settlement of $850K was paid in 1998. And remember Herman Cain?:

Back in the 90s, a few women employees accused GOP contender Herman Cain of sexual harassment, and his employer settled with them. Cain, while insisting his innocence, has claimed he wasn’t aware of the settlements or didn’t remember them. Does that mean he was guilty?

For many of us, the thought that we might be accused of something illegal and immoral terrifies us. If that happened to us, we’d remember every detail, and furthermore we wouldn’t settle with anyone. We would demand our day in court to prove our innocence. That, however, doesn’t reflect the real world.

I make no pretense of knowing what actually went on in the Cain case. But as a former human resources manager, I find his story plausible.

The article goes on to describe the process that can lead to the settlement of a dubious lawsuit:

Companies are focused on minimizing costs and retaining their best employees. They aren’t focused on anything else. It’s not about, truth, justice and the American way; it’s about money.

If you are accused of harassment, HR will investigate. If the HR team determines that you are guilty, there are two real possibilities:

1. The slap on the hand. This goes for minor offenses…

2. Firing. This happens if you’ve done something really bad…and you’re not a high performing, high level employee.

So, where does a settlement with the accuser come into play?

…impact on the company is…taken into consideration. So, if you’re a junior analyst and the other person involved is the VP of Strategy, who has a stellar performance record, it’s most likely going to be you that goes. But, they’ll offer you a settlement of some sort. It will most likely be done along the terms of a severance package…

Now, if HR has determined that there was no illegal harassment, why not just defend yourself in court? Because fighting a lawsuit costs money. Lots and lots of money. Estimates are usually between $50,000 and $250,000 just to fight. (Although some of those estimates say they include potential payout, the costs are high even if you win. Even if the jury/courts declare that the accusing employee was a vengeful liar who purposely set out to destroy someone’s life, the company still pays a boatload to the lawyers.)

The Weinstein and the O’Reilly settlements weren’t small potatoes, though—especially the O’Reilly figure, which was big bucks if the report is correct. so it’s hard to believe a lawsuit judgment would have been even more. But O’Reilly was worth a lot more than that to the company–hiw show was exceedingly popular.

A settlement in and of itself tells you nothing about guilt or innocence, unfortunately. The motivation for a false accusation is there. The motivation for a coverup of a real offense (or multiple offenses) is there. The truth is difficult to know, although repetitive patterns tell us something over time. Sometimes women and/or men both lie and sometimes they tell the truth, both on the offense and on the defense.

A California lawmaker thinks this is a good idea:

A California lawmaker said Wednesday she will introduce legislation to ban secret settlements in sexual harassment cases, taking aim at a practice that for decades prevented the surfacing of harassment and sexual assault allegations against disgraced studio mogul Harvey Weinstein.

State Sen. Connie Leyva, D-Chino, told Variety she will introduce legislation early next year that prohibits the type of settlements Weinstein paid women that required them to sign nondisclosure agreements.

“We really need to remove the curtain of secrecy about what’s happening,” Levya said in an interview. “Ultimately that’s what hurts victims and enables perpetrators to continue to do this and remain hidden.”

I don’t support this. It’s true that the secrecy sometimes does just that—hurts victims and enables perpetrators to continue their pattern of destructive behavior. But eliminating it gives even more ammunition to those who would falsely accuse someone in order to damage that person’s reputation. Sometimes I think we’re fast approaching the time when we can eliminate the court system altogether and just have Twitter decide.

It’s not that I have a solution to the problem; I don’t. But I refuse to say that either sex is the bad one, or that either sex is the invariable virtuous truthteller. It’s just not the case, and I’ve been around long enough to know.

8 Responses to “Out-of-court settlement of sexual harassment suits: what does it mean?”

  1. Geoffrey Britain Says:

    Back in the late 80s I worked at a very large company. Women were just starting to come into what was still a largely male division of the company. One day we had a meeting with headquarters personnel in which sexual harassement was the topic. The company’s position on the subject was unusually blunt. The first accusation would result in our immediate termination. Period, end of story. And no proof would be needed of the veracity of the accusation. There would be no second chances…

    The company lawyers assured us that fighting a possible wrongful termination lawsuit was preferable to having to fight a sexual harassment lawsuit. In which a jury might find the company culpable in having known that the accused had previous accusations made against them that the company had provably ignored.

    The company spokesman conducting the meeting closed by bluntly stating that none of us were worth the millions the company might lose if any of us were sexual predators who the company had kept on after a first accusation.

    That was not a happy group of guys who left that meeting but there was no doubt in any of our minds as to where the company stood on that issue.

  2. J.J. Says:

    Neo: “Out-of-court settlement of sexual harassment suits: what does it mean?”

    It means that legal costs are out of control, that harassment charges can often be false, that sexual harrassers are prepared to buy off their victims, and that so much of it is unprovable (He said, she said.)

    It is mostly all about money – cheaper to settle than go to court. For sexual abusers with money it is a business deal. For the accuser, money is often the main goal. In a perfect world it wouldn’t happen. I have no solutions except for society to become more ethical and less sex and money crazed. Seems like the Bible warns us about those things, but we don’t heed the warnings. It is sad.

  3. neo-neocon Says:

    Geoffrey Britain:

    That sounds like a much more extreme position than is described by the person in the article, and more extreme than what I’ve read about in other articles. I have very little corporate experience myself, and what I have is very very old and irrelevant to this question. Your experience is pretty old, too, and I wonder if that company still has the same policy today.

    However, I bet the CEO of your company wasn’t being told the same thing as the rest of you, even back then. Weinstein was his company’s raison dêtre. And O’Reilly was a huge star at Fox.

  4. Geoffrey Britain Says:

    All good points neo. I left the company a few years after that meeting and lost contact with other employees but I imagine that the policies have changed to some degree, perhaps significantly.

    No doubt high level executives are treated differently. But if those policies (for the troops) do remain largely unchanged, it potentially puts the company at greater risk in the case of a high level executive who is exposed as a serial abuser.

    In that case, if evidence emerged that was compelling… a jury would be likely to see the double standard as unforgivably hypocritical and punish the company to the maximum amount possible. And if a pattern emerged of multiple executives at that company (63 BILLION! worldwide yearly revenue) had engaged in serial harassment, it could lead to truly astronomical awards.

    That said, at the very top… here’s corporate America’s dirty little secret; the CEOs are sitting on each others Board of Directors. In a “you scratch my back and I’ll scratch yours” arrangement, they all vote each other stratospheric amounts of stock options, which is where the real money lies. In lesser but still substantive amounts that same dynamic applies to the VP level as well. That results in top management placing short term gain as the top priority since it drives stock valuations upward. After 5-10 years the executives can cash in on a huge windfall, which I suspect is a major factor in Wall Street’s current 23,000 DOW.

  5. Banned Lizard Says:

    It is worthwhile to consider who is worse in these tawdry stories: the odious perpetrators or their enablers. By the way, this neoneocon post gets my consciousness award for striking exactly the right reaction tone of intelligent contemplation.
    In the long run (many lifetimes of a soul), everyone is innocent, and everything that happened was for the sake of expanding awareness.
    The mind impulsively distinguishes good from evil, and guilty from innocent. But the point of it all is simply to become aware of all those things – including the mind’s impulses. Understanding that is the basis of forgiveness.

  6. Ymar Sakar Says:

    It means lawyers win again. 70-90% of the damages goes to pay for lawyers, who then pay the bars and other money laundering schemes that then pay for Leftist schemes like BLM.

  7. Ymar Sakar Says:

    America has a spiritual problem. All this money and sex problems with the law? They would fix themselves if America fixed their own souls… but they won’t, repenting costs more than a few million after all.

  8. Ymar Sakar Says:

    I have no solutions except for society to become more ethical and less sex and money crazed. Seems like the Bible warns us about those things, but we don’t heed the warnings.

    Maybe christmas would actually have to read the bible first? Rather than listening to a pastor that’s usually corrupt and mistaken, droning on and on for hours about what he thinks the scriptures mean?

    As for me, do I know what’s in the bible?

    https://www.biblegateway.com/passage/?search=1+Corinthians+6%3A1-8%2CEphesians+4%3A31-32&version=ESV

    I remember stuff like that almost immediately. It isn’t that hard to look it up afterwards. It even has DIVERSITY in translations, so that the King James only boys can snub their noses at the rest of you heretics that don’t read KJ bible only…

    At least they aren’t burning heretics at the stake, as christians used to do under the Vatican… then again, that might solve a few things between christians, atheists, agnostics, and deists.

    Protestants think one needs a theological degree and pastor title, to understand a book written by ancient humans… come on. Even if the English is bad, just read the Hebrew and Greek with Strong’s concordance. Westerners are used to baby milk ingestion, getting their scriptural knowledge from Gatekeepers, the same way Americans used to get their “news” from the “4th estate”.

    After 5-10 years the executives can cash in on a huge windfall, which I suspect is a major factor in Wall Street’s current 23,000 DOW.

    Their insider trading is no where near as ludicrously lucre filled as HRC and Congress’ insider trading. Nothing like banning old fluorescent bulbs and getting in CFL bulbs, when you know how the vote will tally, and buy up all the stock and sell off all the trash bonds, before the “masses” in Wall Street figure it out.

    Usually for stock markets, there are the 3-6 month bumps that go up and then stabilize, or go down and then stabilize. That is usually the indication that “somebody with inside knowledge” bought or sold off enough to destabilize the market temporarily. The market stabilizes, people don’t panic. It’s when everybody realizes what is going on, that they then panic, and it either sells all or buys all. This usually happens 6 months later.

    In 2008, the Housing Crash, Soros already cashed out, way before that October surprise. Congress did too. You can just check the Wall Street trade by the hour, by the day, by the week for it. It will show up, if people have the eyes to see it.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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