Opt-Outs & Sexual Harassment: Don’t sign – DO tell

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Sexual Harassment in the News

Open a newspaper. Check your Twitter feed. Turn on the TV. No matter where you look, the news is full of women coming forward with stories of sexual harassment in the workplace.  Members of the House and Senate are dropping like flies.  Hollywood is awash with sexual assault allegations.  The #MeToo movement is Time Magazine’s Person of the Year. Every day brings a new allegation. Powerful men across all walks of life are being publicly shamed out of positions of power.  Some of these allegations are shocking. Many are no surprise at all.  When the initial reports on Harvey Weinstein surfaced, no one could have predicted this scandal would also land at Matt Lauer’s door. When NBC fired Lauer after several of his female co-workers accused him of sexual harassment, most of America was shocked. Every day we ask ourselves, who’s next?

How the Law Often Silences Victims of Sexual Harassment

With every occurrence that is brought to light, people are asking how we got here. For a problem we thought was almost behind us, we’ve now been forced to confront the ugly reality that we haven’t yet scratched the surface.  Society and, more importantly for our purposes, the law have apparently failed working women for decades.  Why were we not made aware of this problem before now? It’s a question currently throbbing through the Twitter-sphere.

An answer may be found in the documents that women are required to sign upon hiring or upon resolution of their claims. Arbitration agreements signed when entering employment serve to push their allegations into the closet, where they will never see the light of day.

The answer? Opt-out. It is almost always the case that buried deep within these documents is the clause that allows you to opt-out.  Find the clause, and check that box. When completing your on-boarding paperwork, if you can’t find the opt-out provision, ask HR.  Women have the power to turn this trend around.

Arbitration:

Generally, most of us don’t read the contracts we sign. Most agreements are presented to us as form contracts or digital click-through contracts. They are often so lengthy we just sign, or hit the “accept” button. We want the most recent OS update to our smart phone, or better connectivity for streaming video. But whether we read them or not, these contracts may be binding. The time to act is before you sign.

When presented with an employment contract, check to see if there is an arbitration clause. Then look for a way to opt out of that clause.  Send an email to HR requesting you be allowed to opt out.  Once you’ve found it, do it. Opt-out.  Many employment contracts will allow opt-outs but ask HR if you aren’t sure. In order to protect themselves in the workplace, women must take steps to regain their voices.

Why is this important? The opt-out provision is an opportunity to retain your right to tell your story to a jury at trial.  Women must fight for their right to be heard in public. It allows you to keep your voice. Agreeing to forced arbitration waives that right. When sexual harassment occurs in the workplace, the ability to go public is always your best leverage. Without it, your claims may be locked behind closed doors forever.  It is the path to obtaining justice.

The Importance of a Jury:

When a woman has the opportunity to discuss her claims before a jury, her peers are able to assess them. The public is able to assess them.  The claims are out in the open. When these acts are exposed, they may serve as a cautionary tale, perhaps protecting other women from a similar experience.

During the arbitration process, there is only one person to make that determination: the arbitrator. When forced into arbitration, women’s claims remain behind closed doors, and their claims are never heard in public. It is this legal “cone of silence” that contributed greatly to serial sexual predators like Harvey Weinstein.  It allowed him to continue preying on women for decades.  Had his first victim not been silenced, many of those who followed might have been spared his attacks.

The ability to have ones claims assessed by a jury at trial is an invaluable tool for your attorneys to use to fight for your rights. Don’t give it away without a fight.

 Non Disclosure: 

With dozens of stories surfacing weekly, the public response is often “Why did they not come forward sooner”? It’s possible that a Non Disclosure Agreement (NDA) kept them from doing so. Signing an NDA upon settlement of a claim is an effective way to keep women silent. These agreements often contain massive financial penalties for any violation of the terms. NDA’s serve as a threat to prevent women from ever discussing their experiences after settlement.

If you are forced to bring an action for sexual harassment or sexual discrimination, file in a public court.  Tell your lawyers that an NDA is a non-starter.  While most cases that settle currently include an NDA, there is no requirement that an NDA be part of any sexual harassment settlement.  Tell your lawyers that you won’t sign one.  If they balk, get different lawyers.

Reporting: 

When confronted with sexual harassment at work, the first step is to report it.  Go to Human Resources. Make a record of the incident. If there isn’t an HR department, call an attorney.  For more detailed information, we have discussed this issue at length  in previous blogs.  Three worth reading are:

When Does a Dirty Joke Cross the Line?.”

“I’ve Been Sexually Harassed: What Evidence Do I Need…”

“10 Steps in Response to Sexual Harassment.”

 

The Takeaway

Sexual Harassment and Sexual Misconduct continue to be topics in the news, as more allegations are revealed at a record pace.  Powerful men will lose their power. Women must take their voices back. There will be prices to pay, and behavior to change.  If you believe you have a story to tell, tell it. If you believe you have been put in an awkward position at work, contact an employment attorney. Lazear Mack is here to help.

LAZEAR MACK LLP
436 14th Street, #1117
Oakland, CA  94612
info@lazearmack.com
510-735-6316

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