Month: February 2018

There is a movement afoot to make it illegal to require that a victim of sexual harassment sign an agreement requiring her or him to not tell anyone.

But first, some activists have argued that men charged with sexual harassment but who reached agreements with their accusers to not disclose in exchange for money should voluntarily release them from these agreements so they can be named and publicly shamed.

These activists virtually never admit or concede or even acknowledge that since the women/victims were paid a “settlement” in exchange for this agreement, that they should then return the money.  No, they should be allowed to accept a large settlement in exchange for their silence and then turn around and break the agreement for which they were paid, with impunity.

By accepting these agreements– and the money, of course– one might conclude that these women actually facilitated the abuse of other women who might otherwise have been informed about the transgressive behavior of this particular male.  But nobody wants to admit that, so let’s move on.  That would make women complicit.  That would undermine the narrative that it is always men who abuse.

It might also lead to distasteful thoughts about victims who might be after money and who might be willing blur a few distinctions in order to get it.   The CBC allowed three women panelists to insist that there is never any “collateral damage”, in other words, men who might be innocent of allegations made by a woman.  There are no “false allegations”.   This is easily debunked, but the CBC did not present any counter arguments.  In fact, it is ridiculously easily debunked.

So now it is proposed that such agreements should never be made.  I wonder if these activists, including several members of Congress, realize the implications of this change.

In a typical case of sexual harassment– though none are really “typical”– a woman is the victim of inappropriate and harassing behaviours by a male employee, coworker, customer, or supervisor.  Perhaps she complains to a supervisor or an HR staff member about the behavior.   A meeting may be arranged.  The man is confronted with the woman’s account of the incident.

Here’s the crux.  The goal of the HR department and the company will be to keep the name of the company from being dragged through the mud, which is typically why they offer money to the woman to go away and keep silent.  In these situations, the perpetrator may be convinced to confess and apologize and acknowledge wrong-doing.   But under the new regime– no “non-disclosure” agreement– the man and the company that employs him have very little incentive to offer a settlement to the woman.  She can go public anyway.

She cannot be asked to sign an agreement that, in exchange for the money, she will not go public.  The perpetrator has no incentive to apologize.  The HR Department has no incentive to pay.  They may take their chances in court instead.

It is possible that some companies will acknowledge fault and offer the woman money anyway, trusting that disclosure of the fact that they offered her compensation will be enough to salvage the company’s reputation.   The alleged abuser may also acknowledge fault and offer to “make it right”.

Or given that there is no possibility of confidentiality, will the alleged abuser choose instead to deny, deny, deny, like Donald Trump and Roy Moore?  And accuse the woman of lying?  And, probably, put a lot of effort into attempting to discredit the accusations?  In a situation in which, otherwise, the woman might have been offered an apology and a lot of money in exchange for her silence?

Would most women prefer this option?  Might they find the prospect of a determined fight distasteful and prefer to just keep quiet about it.  Might they not begin to conclude that it’s not worth the hassle?

The women activists pushing this option might well be convinced that things have changed so much that accusations will always be believed and companies always penalized and the money forthcoming always, easily, and generously.

They can sue instead.  But you can’t sue without the accused having the right to defend himself.  That means he (his lawyers, that is) can cross-examine.  That means you might have to testify.   Many feminist lawyers despise cross-examination in these cases because they seem to believe that the woman should be automatically be assumed to be telling the truth, they way they were all telling the truth about Jian Ghomeshi.  Until cross-examination.  Until the e-mail messages were revealed.   Until it was shown that they lied.