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.
False 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.