When harassment costs the public
Across the country, elected officials are proposing legislation to prohibit the use of taxpayer dollars to settle sexual harassment claims brought against government employees. Such a proposal, intended to hold individual harassers accountable, was a major component of a package of reforms proposed here in New York by Gov. Cuomo; similar bills are under consideration in Pennsylvania, Illinois, Michigan and elsewhere.
While these bills may sound good — why should taxpayers be on the hook for illegal behavior by government employees? — they are likely to be struck down if challenged in court. Equally important, they’re just bad policy.
Consider attempting to implement such a policy in a corporate setting. Assume that the board of directors of XYZ Co. passes a resolution prohibiting the use of company funds to resolve cases of sexual harassment brought against the company.
Victims can sue, but their only recourse will ultimately be against the individuals who discriminated against them — some of whom might have left the company long before the cases go to trial, and others who may have limited assets and are unable to pay any damages. Even if it is apparent that the company allowed, or possibly even perpetuated, a culture of harassment, the company itself would never pay a dime, and the victims would get nothing. Absurd, right? Thankfully, this cannot occur. Sexual harassment is a form of discrimination based on gender, prohibited by the federal Civil Rights Act of 1964, and companies cannot exempt themselves from the law by passing resolutions prohibiting the use of corporate dollars to pay damages to victims of discrimination. Nor can state governments.
Like all employers, state governments are subject to the federal civil rights laws, which means they cannot avoid liability by adopting legislation refusing to use public dollars to pay damages for harm caused by their employees. Similar “no taxpayer dollars” legislation is pending in Congress, which ironically has the power to circumvent the civil rights statutes.
But the reason these policies are misguided goes beyond this. Currently, government lawyers can decide that an accuser’s claims have merit, and choose to settle the case and compensate the victim. Banning taxpayer-funded settlements will preclude that, and harassers could decide to force the victims into the long and expensive litigation process.
Even when victims win their lawsuits, they will then face the burden of tracking down their harassers’ assets (if any) to satisfy the court’s monetary award, and likely will end up with large attorneys’ fees and little or no compensation. This arduous and painful process is likely to deter many government employees from bringing sexual harassment actions in the future.
Instead of relying on proposals that are likely illegal at the state level, and likely harmful to victims everywhere, let’s instead listen to the brave women who have been so vocal on this issue over the past several months, and ask all employers to hold themselves to a higher standard.
One way to do this is by eliminating nondisclosure agreements. Currently, employers who settle sexual harassment claims generally include an NDA in the settlement, prohibiting the accused from disclosing the terms of the agreement. Sometimes these provisions are desired by the accuser, but most often they are simply demanded by the employer, and more often end up protecting the tormentor over the victim.
Across the country, women have called on employers to immediately stop including nondisclosure agreements in settlements unless requested by the victim, and publicly pledge not to enforce NDAs included in such agreements in the past.
These actions will free victims to tell their stories if they so choose. Eliminating NDA protections will simultaneously raise the standard of personal conduct in organizations by publicly exposing patterns of behavior that would otherwise remain hidden.
Unfortunately, we know that many companies will continue to hide misconduct by their employees, and this is where our federal and state government officials can play a part. They should pass legislation (or, where permitted, issue executive orders) refusing to do business with entities that continue to require nondisclosure agreements in discrimination settlements, or declaring such provisions void unless requested by the victim.
For too long, corporate and government entities have maintained laws, policies and practices that have helped perpetuate sexual harassment in the workforce. Now is the time for them to become part of the solution. Forget the feel-good, counterproductive policy ideas and get down to business.