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Protecting ‘superstar’ serial sexual harassers can backfire on employers


WASHINGTON — Employers should not look the other way when their “superstar” performers engage in sexual harassment, and they should be tracking allegations to ensure they don’t have serial harassers in their workplaces, according to government officials and legal experts.

Sexual harassment has been in the news extensively in recent weeks, triggered in large part by the allegations made against movie mogul Harvey Weinstein that have cascaded into accusations against other prominent figures in the entertainment and journalism industries and a social media movement aimed at drawing increased attention to the scope of the problem.

There have been increased attention and harassment inquiries to the U.S. Equal Employment Opportunity Commission since Oct. 5, the date the Weinstein allegations were first published, two EEOC commissioners told attendees of the American Bar Association’s annual Labor and Employment Law Conference in Washington on Thursday.

“Since Oct. 5, we really have been all harassment all the time,” acting EEOC Chair Victoria Lipnic said.

A June 2016 task force report published by Ms. Lipnic and Commissioner Chai Feldblum highlighted that 45% of alleged harassment charges received by the commission were on the basis of sex.

“We take no pleasure in saying we told you so, but there were a number of action items that we viewed as a first step,” Ms. Lipnic said, referring to the agency’s respectful workplace training program and its commitment to update various guidance documents on sexual harassment and harassment generally.

The June report specifically identified the problems created when a superstar performer engages in workplace harassment and managers ignore or cover up such behavior or retaliate for a harasser.

The superstar harasser is the “really high-valued employee who brings in all the grant money, gets all the clients, is very high value to the organization, and the organization knows the kinds of behaviors that have gone on, and they’ve tolerated it for years,” she said.

Ms. Lipnic said she hopes employers will make “a different cost-benefit calculation” and decide that what they have tolerated for years will cost them from a reputational risk perspective and encourage them to take “corrective action that will make a difference.”

However, the panel was divided on the issue of whether employers should be allowed to include confidentiality provisions in sexual harassment settlement agreements.

It is a “thorny public policy issue,” Ms. Feldblum said.

“Certainly, as a matter of public policy, the silencing of folks who have been targets of harassment and then settled is a problem in terms of transparency and communicating to other folks, so I think that’s why there’s this feeling it shouldn’t be allowed in certain types of cases like harassment,” she said. “On the other hand, any private plaintiff attorney will tell you that a management attorney will offer more money if there is a confidentiality provision in there.”

There are many considerations, including the fact that not all harassment victims want this information to become public, Ms. Lipnic said.

“Confidentiality agreements can benefit both parties, but for different reasons,” said Samantha Grant, a partner representing employers in the labor and employment practice with Sheppard, Mullin, Richter & Hampton L.L.P. in Los Angeles. “Plaintiffs often don’t want to have that out in the public sphere … so they want the confidentiality. And also, they get more money most times because the company is trying to avoid negative publicity. If employers are forced to not have confidentiality provisions in settlement agreements, I think there will be fewer settlements and for less money, and employers will take more cases to trial.”

Kelly Dermody, an attorney representing employees with Lieff Cabraser Heimann & Bernstein L.L.P. in San Francisco, said her clients who have been harassed often experience a certain amount of scrutiny, including factors that should not be discussed, such as their sexual presentation or attractiveness. But that does not mean employers should not monitor their employees for sexually harassing behavior, she said.

“Companies that do not track serial sexual harassers are really in big trouble,” Ms. Dermody said.