Talk for Article "Pursuing sexual harassers is the next ordeal, despite #MeToo"

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    This story has the potential to grow into a place that identifiies points of leverage to change the legal and regulatory regimes governing these complaints. In particular, legislation including several employer-friendly provisions may now be more vulnerable to political pressure seeking amendment to produce a more favorable climate for pursuit of harassment claims.

    One point of leverage for such pressure that I’d flag for the US are the provisions of Title VII restricting employees’ rights to sue employers, especially when it comes to timing. The 180/300 day “waiting period” imposed on plaintiffs contributes substantially to the price of pursuing complaints. States with their own rights commissions enabled to handle these complaints automatically extend the federal 180 day period to 300 days:

    During this period the EEOC or state human rights commission can at its discretion “investigate” claims. There is data here–I don’t have current numbers (fed and state) myself[1]–that shows that these agencies in effect stall the process for the duration of the waiting period. All that time plaintiffs and the attorneys they retain are managing both the complaint, with any internal processes outstanding as well as related issues around the employment, if it continues, all of which increase the overall cost of the complaint. If a plaintiff is suing a non-federal public entity like a university, they have to get a “right-to-sue” letter from the US Justice Department before filing a lawsuit, and they’re not eligible to request such a letter until after the end of the waiting period. This process also adds considerably to the cost of the process.

    If plaintiffs are paying only retainers and perhaps a monthly fee, on a formal or informal contingency agreement, this puts the decision of when and whether to settle a case largely in the hands of attorneys, who will make their own judgments about when they’d like to get paid, after what can be months or more than a year of enforced preliminary.

    If a plaintiff owes her attorney a considerable sum by the time the federal lawsuit is filed and the onerous and expensive process of discovery complete, the attorney may decide that the time is ripe to get the best monetary settlement. That attorney can then use the plaintiff’s legal bills to pressure his or her or their client to settle the case before more public and thus more damaging stages of the litigation. The unwelcome prospect of these for the employer-defendant is for the plaintiff’s attorney a chip in the bargaining process over the size of the settlement, rather than a chance to expose the harassment or discrimination and to get non-monetary justice for the plaintiff.

    Plaintiff attorneys in this position are also often the main sources of pressure to sign non-disclosure and non-disparagement agreements, since these concessions by the plaintiff raise the settlement payout and the plaintiff attorney’s payday.

    The waiting period and right-to-sue restrictions, with their effect on the costs of litigation, apply not only to victims of harassment or discrimination but also to anyone suffering retaliation for reporting or trying to help such victims in the workplace. This contributes to the chill on pursuing these complaints and curbing the behavior of perpetrators inside the institutional culture of these employers.

    Other provisions of Title VII concerning the rights and protection of Affirmative Action Officers as employees also contribute to this chill:


    [1] You can see references to the general problem in this testimony to the Pennsylvania Human Rights Commission:

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      Thank you for your ideas here Catherine. Will look into these.

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    “according to a 2016 study by the Equal Employment Opportunity Commission (EEOC).”

    Shouldn’t this be a “report” not a “study”… the report cites a survey that gives the 6-13%

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      Hi Dwight. Thanks for pointing out. Changing now.

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