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Friday, November 04, 2011
Refusing to Settle
As someone who has spent so much of her career litigating, thinking about, and writing about sexual harassment cases, I thought that I’d certainly want to weigh in on the very timely topic of the sexual harassment allegations against Herman Cain this week. The problem is, however, that without more details than those which have been provided to the public, it’s very difficult to say anything intelligent about what happened. I realize, however, that in all of my years of thinking about harassment, I have focused on certain issues and vantage points while paying far less attention to others. So, for example, I have written about the “educated harasser” who understands that unless he follows through on his threats and allows a tangible action (like a firing or demotion) to befall his victim, as long as his victim is too intimidated to complain about his behavior, he should not incur any liability on his employer’s behalf. I have written about the harasser who is a rainmaker or otherwise valuable to his employer and who retains his job and is perhaps only slapped on the wrist and transferred after an allegation and investigation—which allows him to become an unchecked recidivist harasser.
But I will confess that I had not until this point thought very much at all about the plight of an alleged harasser who contests the sexual harassment allegations made against him and must live in the wake of a settlement agreement executed by his employer. Leaving aside the presently unknowable veracity of the allegations against Mr. Cain, I am now considering the question of how the fact that many harassment suits do not name the alleged harasser may divest one accused of harassment of the discretion to make judgment calls in the ensuing legal proceedings. Although we, as lawyers, know that a settlement agreement does not bespeak an admission in any way, is this knowledge sufficient when the public record contains character-tarnishing allegations and evidence of a settlement, the terms of which may be shrouded in secrecy? We, as lawyers, also know that a variety of factors, the least weighty of which may be the results of an internal investigation and the personal beliefs of those with the power to settle, go into a decision to settle a lawsuit. But ought this knowledge assuage someone who vociferously contests the allegations made against him and would have prized his day in court above the constraints that refusing to settle would place on everything from the employer’s financial, legal, and other resources, to its morale, public relations, and other intangible but significant factors?
It is difficult to think of a lot of civil contexts in which someone is accused of doing something that reflects so negatively on their character in the court of public opinion and yet is not typically a party with the prerogative to refuse to settle. I have spoken with a few people who say that sometimes doctors are strongarmed into settling medical malpractice claims that they'd rather fight by cost-conscious insurers, and others who say that the doctors they know retain the prerogative to refuse to settle. I should note plaintiffs sometimes name their harassers in sexual harassment suits brought against their employers, but Title VII claims will not generally be maintained against individuals. Accompanying state law claims like those for intentional infliction of emotional distress, assault or battery, for example, may stick against an individual, but very often the individual harasser is simply not named.
Posted by Kerri Stone on November 4, 2011 at 12:32 AM | Permalink
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Comments
Thanks for this post, very thought provoking! As a reformed employment litigator and former HR professional as well (surprisingly I don't teach employment law), I have seen my fair share of these disputes. It is very true that the company, which is usually paying for the defense of the suit, will decide whether the case settles (oft times without consideration for the perception this casts on the alleged harasser). Of course, most alleged harassers don't end up running for President; but this brings the situation to light. Should Herman Cain be penalized for an allegation that happened in the 1990s? Should he be forced to talk about a situation that is purportedly confined to a confidential settlement agreement (assuming it was a mutual confidentiality and nondisparagement provision included, which is usually not the case and typically only the alleged victim is bound to confidentiality and nondisparagement in turn for receiving compensation). Perhaps yes because of the high moral fabric with which we hold our country's leaders. But the real shame is that someone breached confidentiality and brought this situation to light in the first instance. If I weren't still attending my litigator's anonymous meetings, that is the person I would want to go after!
Posted by: Kendall Isaac | Nov 4, 2011 11:21:00 AM
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