The topic of sexual harassment of women in the workplace has gone viral on social media and in the press in recent weeks. If you’re on Facebook and you’re seeing the “me-too” posts, it’s very evident that sexual harassment is something that impacts the lives of every woman in our society. The press has been reporting the multi-million-dollar payouts that occur to cover up the indiscretions of wealthy celebrities, but the truth is, most women who are victims of predatory men receive very little, if any, compensation. Their recoveries, if they get any compensation, are very modest. In many, if not most employment settings, victims of sexual harassment don’t even have the right to access our courts due to binding arbitration agreements that are forced upon them by their employers who won’t hire them unless they agree to waive their right to go to court. When settlements do occur, no matter how modest the payout by the employer, the woman is often forced to agree to confidentiality which leaves her vulnerable to a lawsuit from the perpetrator if the woman ever speaks of the abuse or the settlement. In so many ways, the system is set up to protect the very abusive power dynamic that gave rise to the abuse.
I will concede that the law is often imperfect when it is applied to the most intimate areas of our lives. Not every workplace sexual encounter is harassment, nor is every relationship that starts in the workplace and then goes off the rails a legal wrong. I think it would impossible for employers and the courts to keep co-workers from developing crushes on each other or keep love from blossoming in the workplace. On the other hand, we cannot turn a blind eye to abuses of power and blatantly inappropriate behavior. What is consent and what is coercion when it comes to sexual behavior between adults, in the absence of any evidence other than conflicting testimony between the parties, can be very difficult to determine. But, I truly believe, that there is no better place to sort through such issues than the open public forum of our courts where a legal record is created, and legal precedent established. Certainly, if a victim and the accused both want to use a private mechanism such as arbitration, then they should be able to do that, but the right to use our taxpayer-supported legal system should not taken away from an employee in order to be hired into a job. Unfortunately, our elected representatives, ever- eager to sacrifice the rights of the American people in service of the interests of corporate overlords, recently invalided a Consumer Financial Protection Bureau rule that would have banned arbitration and class action waivers in consumer finance agreements despite compelling research that showed such contract terms harmed the average American. Additionally, the only way to protect victims of sexual harassment and other forms of corporate abuse from being coerced into silence is to pass laws that prohibit the enforcement of any confidentiality in any sexual harassment settlement.
When I was in law school I had a professor in my first-year contract law class who said that law exists to maintain the power structure in society, except in the most egregious cases. At the time, I thought he was just being cynical, but after 15 years of practicing law, I am convinced that there is a lot of truth to what he said. The workplace is an environment of disparate power relationships, and unfortunately, the law, and ultimately our society, supports this inequality and oppression. Until our society takes steps to equalize the employer-employee relationship and refuses to enforce arbitration in employment disputes and confidentiality clauses in settlements, the powerful will be able to continue their abuse and the scope of the problem will remain largely hidden.