Sexual Harassment, Non-Disclosure Agreements, and Bill O’Reilly

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Sexual harassment claims have been flying through the media over the last year. The Weinstein Co., Fox News and Bill O’Reilly, and even President Trump have been the target of sexual misconduct allegations. In each of those cases, non-disclosure agreements were used to silence the claims and avoid legal consequences. So why would anyone agree to sign one?

In this blog post I will review the non-disclosure agreements used by Bill O’Reilly and the Weinstein Co. to prevent sexual harassment and misconduct allegations from going public. I will discuss the use of non-disclosure agreements for both employers and employees, and why a worker facing discrimination would be willing to sign one.

Sexual Harassment, Employment Discrimination, and Non-Disclosure Agreements

The #MeToo movement has been around for a while, now. Often, the allegations that hit the media are years, or even decades old. There are many reasons why the victims of sexual harassment or abuse may choose not to tell their story publicly. But sometimes the delays more legal than personal.

Local, state, and federal laws, including Title VII of the Civil Rights Act, make it illegal for supervisors, managers, and employers to harass or discriminate against their employees because of their sex or gender. The victims of sexual harassment and other forms of gender discrimination can turn to the Equal Employment Opportunity Commission or private employment discrimination attorneys to get compensation for sexual misconduct.

In many cases, that involves a lawsuit in federal court, but sometimes the issues can be resolved informally. When sexual harassment allegations resolve out of court, the settlement agreements can include a variety of remedies, including money damages for lost wages and other expenses, changes to workplace policy, and other compensation for harm done. In exchange, the employee gives up his or her right to sue for, and in many cases even talk about what happened on the job by signing a non-disclosure agreement (NDA).

Sexual Harassment Allegations Against Television Big-Wigs Silenced by NDAs

Harvey Weinstein and Bill O’Reilly each faced delayed sexual harassment allegations last year as part of the #MeToo movement. In each case, their companies (the Weinstein Co. and Fox News) had made use of non-disclosure agreements to resolve the matters quietly and minimize media attention. Even then-candidate and reality-TV-star Donald Trump, by his attorney Michael Cohen, used an NDA to silence claims of sexual misconduct in 2016. When confronted with the fact that his lawyer had entered into an NDA with porn star Stormy Daniels, the President defended the decision, calling NDAs “very common among celebrities and people of wealth.” However, the terms of those non-disclosure agreements and the circumstances surrounding them can sometimes cross the line from settlement to cover up.

Bill O’Reilly’s NDAs Go Beyond Silence

The settlement agreement between Bill O’Reilly and Andrea Mackris and Rebecca Gomez Diamond was recently released by order of a United States District Court Judge. The contract went beyond non-disclosure. In addition to strict confidentiality, it required both the women, and their attorneys to turn over evidence related to the allegations, making it harder for them to prove any future case. If any of these materials ever became public, Ms. Mackris was required to disclaim them “as counterfeit and forgeries” — in other words, to lie.

As part of the settlement, Ms. Mackris’s attorneys, Benedict P. Morelli & Associates also agreed to provide legal advise to Mr. O’Reilly on sexual harassment issues, and not to take on new clients with sexual harassment claims against O’Reilly or Fox News. These clauses essentially removed the firm from the pool of experienced employment discrimination attorneys available to fight for Fox’s employees’ rights. This also raise ethical questions, since M. Mackris was required to waive any conflict of interest claims against Fox or the law firm.

The Weinstein Co. Terminates Non-Disclosure Agreements

The Weinstein Co. recently announced that former CEO Harvey Weinstein also “used non-disclosure agreements as a secret weapon to silence his accusers.” While those agreements have not been made public, over 70 women have accused Weinstein of some form of sexual misconduct, up to and including rape. Weinstein was forced out of his company last year as a result of the allegations. Now the company has formally released the victims from any non-disclosure agreements they may have signed, saying:

“The Company expressly releases any confidentiality provision to the extent it has prevented individuals who suffered or witnessed any form of sexual misconduct by Harvey Weinstein from telling their stories. No one should be afraid to speak out or coerced to stay quiet.”

However, the announcement was coupled with the Weinstein Co. filing for bankruptcy and Lantern Capital Partners agreeing to purchase substantially all the company’s assets. This could significantly limit any recovery the Weinstein employees may have.

Why Would Sexual Harassment Victims Sign NDA Settlement Agreements?

With all the bad press, it can be easy to question why sexual harassment victims would agree to sign settlement agreements that include non-disclosure agreements. Why not just go to court?

There is no such thing as a “typical” sexual harassment victim. Employees facing gender discrimination come from every industry, and have a wide variety of life experiences. Some of those circumstances can make private settlement agreements more attractive than a drawn out court battle. Sexual harassment victims may agree to sign a non-disclosure agreement if they:

  • Plan to return to the workplace or seek employment from a competitor
  • Need financial compensation quickly to cover life expenses, medical bills, or mental health costs
  • Value privacy for themselves or their families
  • Could face a counter-suit for wrongdoing at work or violation of company contracts

A private settlement agreement can be a better solution for both employee and employer alike. It can resolve the matter quickly and privately and protect everyone’s interests. However, as with any contract, it is the details that matter. When NDAs try to cover up criminal behavior, the court may not even enforce them.

What Non-Disclosure Agreements Don’t Cover

A non-disclosure agreement is usually paired with a promise not to sue. This waives any right to civil compensation that the sexual harassment victim may have. It also says the person can’t go to the media or discuss the matter with coworkers or future employers. But it does not forgive criminal behavior. If a person has faced sexual assault, he or she can still go to the police and report the crime. In most cases, this will not be a violation of the NDA. Sometimes, it can even cause the judge to void the NDA altogether.

But the employees who sign the non-disclosure agreements may not know the difference. An ex-assistant of Harvey Weinstein told the UK’s MPs that she felt pressured to sign the NDA with Miramax Films, and she believed that if she ever discussed the issue in detail — even with mental health counselors or legal representatives — she would be breaking the law and could be sent to jail. She had no idea that the terms of the settlement agreement may have been unenforceable. She told the Women and Equalities Committee:

“There cannot be a legal document that protects criminal behaviour.”

There are valid reasons for sexual harassment victims to sign non-disclosure agreements as part of out-of-court settlements. A swift and quiet resolution to issues can sometimes be best for everyone. But employees need to know the impact those NDAs can have, and when they cross the line into an illegal cover up.

At Eisenberg & Baum, LLP, our employment discrimination and sexual harassment attorneys know how to work settlement agreements and non-disclosure agreements to our clients’ advantage. If you are facing an out-of-court settlement, we can help you review the language, so you know what you are getting, and what you are giving up. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

New York City Council Passes Stop Sexual Harassment in NYC Act

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The size and diversity of New York City puts employees of all different types, and genders, in close contact. Sometimes, that can result in sexual harassment. In response to the #MeToo and Stand Up movements sweeping the nation, the New York City Council has decided to take the lead, passing the “Stop Sexual Harassment in NYC Act.” But will it be enough to change hearts and minds?

In this blog post I will discuss the Stop Sexual Harassment in NYC Act recently passed by the New York City Council. I will explain what the bills do to fight sexual harassment, and whether some experts believe it will be enough to change hostile workplace culture.

On April 11, 2018, the New York City Council passed one of the strictest anti-sexual harassment ordinances of any state or municipality in the United States. The “Stop Sexual Harassment in NYC Act” goes well beyond federal, or even state Civil Rights laws, to explicitly protect NYC employees from harassment on the job.

The Stop Sexual Harassment in NYC Act Creates Protections for Public and Private Employees

The Stop Sexual Harassment in NYC Act is actually a package of bills, each of which adds, strengthens, or amends existing civil rights ordinances already in place within the city. The Act is designed to extend protections to every NYC employee, whether they work for the government, a large private employer, or a small business in the boroughs.

The package of bills contain a number of sexual harassment protections. The NYC Human Rights Law (NYCHRL) has been amended to explicitly ban sexual harassment, and the city has called on Congress and the President to pass federal bill S.2203/H.R.4734, “Ending Forced Arbitration of Sexual Harassment Act of 2017.”

(Read More about mandatory arbitration in employment contracts.)

For city government agencies, and the offices of the borough presidents, comptroller and public advocate, the Act also requires:

  • Annual reports of sexual harassment incidents to the Department of Citywide Administration Services
  • Annual climate surveys of public employees to gauge awareness of federal and local civil rights protections
  • Production of sexual harassment prevention and response policies from all contractors and subcontractors working for the city
  • Broad review of city policies by the newly founded Charter Revision Commission

In the private sector, the Act:

  • Amends the NYCHRL to remove the minimum employee limit
  • Requires anti-sexual harassment posters be displayed at all work sites
  • Extends the time period to file a sexual harassment claim from 1 to 3 years after the incident

The most ground-breaking provision of the Stop Sexual Harassment in NYC Act is that it requires annual anti-sexual harassment training for all public agencies and private employers with at least 15 employees. The City Commission on Human Rights has been directed to put together a website including an online training program designed to prevent sexual harassment through employee education.

The New York City Council is proud to be putting forward such an aggressive set of regulations. Speaker Cory Johnson said in a statement:

“With the #MeToo and the Time’s Up movements, we have seen that women are forces to be reckoned with, and they made loud and clear that enough is enough. The beginning of the end starts with New York City. All New Yorkers are entitled to a safe, respectful workplace, and this package of legislation sends a strong message to public and private employers that there is no place for sexual harassment in our City.”

Commentators Question Effectiveness of Online Anti-Sexual Harassment Training

The Stop Sexual Harassment in NYC Act is one of the first of its kind, mandating annual anti-sexual harassment training across public and private employers. But some commentators are questioning whether the Act will be effective in changing workplace behavior. Jackie Wattles and Julia Carpenter, of CNN Money, explain that many large employers already use the kind of “online interactive” program that would satisfy the Act’s annual training requirement. They say:

“Frequently they are slide after slide of graphics depicting scenarios in which a male colleague makes an inappropriate advance or remark about a female colleague. The multiple-choice questions require you to select an often unrealistic ‘right answer.’

It’s easy to click your way through such trainings and forget it ever happened. Research shows the training videos are not as effective as once thought.”

They say that where sexual harassment is already a part of workplace culture, mandatory training videos won’t solve the problem. And when training illustrations focus on stereotypical demographic arrangements — such as a white man is harassing a woman of color — they can even have the opposite effect, leaving men feeling “blamed, isolated, or angered.”

Instead, Wattles and Carpenter encourage New York City employers to engage in training tailored to specific workplaces over cookie-cutter training programs. They also said programs are much more effective when they focus on bystander intervention and empower men to help stop the problem, rather than calling out mistakes that could be made.

The New York City Commission on Human Rights has until April 2019, when the bill takes effect, to create its online training program. Creating a one-size-fits-all solution that will adequately address the spectrum of anti-sexual harassment needs is a tall order. It will take time to test the effectiveness of any solution put forward and to tweak the system to do the most good for New Yorkers facing sexual harassment at work.

If you are facing sexual harassment or other forms of gender discrimination at work, the sexual harassment attorneys at Eisenberg & Baum, LLP, are here to help. From our headquarters in the heart of New York City, we represent the victims of hostile work environments in state and federal court, and in front of regulatory agencies at every level of government. We can help you understand your rights and choose the best option to protect your interests. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

When Do I Have To Report Sexual Harassment?

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The news for the last few months has been full of sexual harassment allegations from decades ago. High-powered men from Hollywood producer Harvey Weinstein to long-time congressman John Conyers have faced allegations that they sexually harassed women in their employ years before. But could those allegations still result in civil rights lawsuits? Or is it too late to report sexual harassment?

In this blog post, I will review the statute of limitations under Title VII of the Civil Rights Act and other deadlines to report sexual harassment. I will explain how this could affect the decades-old allegations that have arisen in the news, and what you need to do if you think you have a sexual harassment claim.

Deadlines to Report Sexual Harassment at Private Companies

Years-old sexual misconduct allegations may make good news headlines, but they don’t provide relief to employees. Federal anti-discrimination laws, including Title VII of the Civil Rights Act, give workers a limited period of time to file a sexual harassment charge.

If you work for a private employer, you have 180 days after the incident to file your complaint. If a state or local law applies to your case, the filing deadline could be extended to 300 days after the incident. Internal H.R. complaints or private arbitration do not extend this deadline, so it is wise to start the reporting process as soon as possible.

Statute of Limitations for Federal Government Employee Complaints

Federal employees face an even tighter timeline to report sexual harassment at work. Many federal employees must contact the EEO Counselor at the agency within 45 days of incident. Congressional employees may have 180 days under the Congressional Accountability Act. Then most federal EEO complaints will be referred to internal mediation or other dispute resolution programs. If the case is not resolved in that process, federal employees must file a formal complaint within 15 days of receiving a about how to file.

Calculating When a Sexual Harassment Incident Start the Clock

It may be easy to measure when overt sexual harassment happens. But in other cases it can be difficult to determine when the incident starts the clock on the statute of limitations. When there is more than one incident of discrimination involved, a separate deadline applies to each event. For example, if your supervisor approached you for sexual relations in exchange for promises of a raise or promotion in March, June, and July, you would need to file a complaint about the first behavior by November. Under the 180 day statute of limitations, if you waited until January or February to file your complaint, you would only be able to collect damages related to the later incidents.

However, in harassment cases, while you still must file your complaint within 180 or 300 days of the latest incident, the Equal Employment Opportunity Commission (EEOC) will look at all incidents of harassment, even if they happened months or even years before. This is because, a successful sexual harassment claim requires employees to show a pattern of offensive behavior over time.

Getting a Sexual Harassment Complaint Started

Getting a sexual harassment complaint started often depends on the internal policies of your company. Especially if you are a member of a union, you may need to complete your employer’s complaint process before you file with the EEOC. With the short deadlines to report sexual harassment, it can sometimes be challenging to file a formal complaint in time to receive full compensation for your damages.

At Eisenberg & Baum, LLP, our employment discrimination and sexual harassment attorneys can step in to your case even while you are still at the internal review stages. We can help you ensure you meet federal, state, and local requirements, and report sexual harassment before the statute of limitations expires. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.