Kotkin on “How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment”

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Professor Minna Kotkin

Blogroll member Minna Kotkin (Brooklyn) has a fantastic op-ed in today’s WaPo, with the headline “How the Legal World Built a Wall of Silence Around Workplace Sexual Harassment.” Here is an excerpt:

Less than 3 percent of employment discrimination cases go to trial, with a public verdict. Legal scholars and researchers estimate that close to 80 percent of the cases result in settlements, with the remainder dismissed before trial. Cases that settle are protected by confidentiality agreements, so we don’t know what the terms look like.

Another factor that contributes to secret settlements relates to how attorneys are paid for representing employees and the pressure they may place on their clients. Most employment lawyers work on a contingency-fee basis, receiving a percentage — usually one-third — of the settlement. When an employer offers a sum to make a case go away, it comes attached to a confidentiality clause; if the plaintiff refuses the clause, she gets nothing at all — and neither does her lawyer. Ethical standards enforced by state bar associations and courts require that settlement decisions be made by clients, but attorneys who want to collect their fees have every incentive to steer their clients toward accepting the confidentiality clause. And retainer agreements often say an attorney may withdraw if a client “unreasonably” fails to accept a settlement offer. Some lawyers have been known to switch to an hourly fee if a client refuses a settlement, an ethically questionable tactic that can make it financially impossible for the employee to continue with her claim.

Confidentiality agreements help protect serial harassers. But with public attention now focused on harassment, victims and their lawyers can shift the balance of power in settlement negotiations. They can agree with their lawyers at the outset that they will not accept a settlement that includes confidentiality — just as defendants now claim that they will never settle without it. Plaintiffs must be equally assertive, especially once a court action is filed and the underlying facts are in the public record. If employers balk, they can always go to trial and take their chances in front of a jury.

You can read the full op-ed here.

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