What’s Behind the Huge Settlements in Today’s High Profile Sexual Harassment Cases?

The Harvey Weinstein sexual harassment charges have prompted a cavalcade of similar claims against other famous Hollywood moguls, directors, actors and media types, as well as highly placed politicians. The damage settlements reached in many of these entertainment industry cases (made prior to the public “outing”) are astronomical – and should give us pause as to the amounts. For example, Bill O’Reilly paid $32 million to a news analyst whom he alleged sexually harassed – a hefty sum regardless of how despicable the actions may have been in that case. Why so high? Power and position, of course.

In my legal practice, I’ve represented several women who have experienced sexual harassment in the workplace; yet, the damages to these victims were minuscule relative to the high-profile settlements that have recently been shared in the media. The inequity has me wondering – should victims of sexual harassment receive less simply because their harasser is less visible, less “important” or low profile? A woman who is harassed every day on the job by a co-worker at a DIY retail chain, for example, may receive a settlement of $50,000 for damages. Her hourly pay rate in combination with her unskilled job – along with that of her harassing co-worker – are factored into the dollar value of the case. Separately, or together, neither of these employees possess much power in their individual roles; and unless the harassing behavior is store or corporation-wide, individual incidents of harassment don’t bring down a brand.

So, what does that say of the Weinstein situation, or those at Fox or other high-profile entertainment or media companies? It says it’s not about what they’ve done, but who they are. To them, the price tag on power and image is limitless – and those with the authority to protect themselves or their company (there frequently seem to be corporate accomplices in these cases) will go to extreme lengths to do so. The goal with these men is not to compensate the women (or men) for the unacceptable and sometimes criminal behavior they had to endure, but to protect the brand at all costs.

These settlements are typically approached with a high degree of confidentiality, but that may be changing, at least for government employees. As an attorney who has worked defending victims of sexual harassment and other types of workplace abuse for more than 20 years, I believe a shift is coming. Most recently, “me too” legislation was proposed by Sen. Kirsten Gillibrand, D-N.Y. A victim of sexual harassment herself, Senator Gillibrand has proposed an overhaul of the process of filing harassment claims currently governed by the 1995 Congressional Accountability Act.

The most notable change, requiring public disclosure of the employing office when a claim is settled – and disclosure of the amount – may actually discourage settlements and force parties into expensive, protracted litigation. If members of state government are not able to enter into confidential settlements, they would have no incentive to settle these cases and would be forced to exonerate themselves of every allegation to maintain their reputations among constituents. I am not all together sure this is a bad thing. Perhaps, complete transparency is necessary. However, I can assure you that this would create a massive amount of litigation and drive the costs of these suits up considerably.

Meanwhile, requiring public disclosure in the private sector is less likely to occur, keeping large, confidential settlements to victims of sexual harassment by persons of power as the status quo.

Vince Colella

November 27, 2017