As increasing numbers of women come forward to speak out about sexual harassment and discrimination in the workplace, many news commentators have called for an end to confidential discrimination settlements. The intentions behind this call are honorable and righteous, but the reality may be more complicated.
Confidential settlements offer benefits for victims. Not every victim wants her name in light. And not every victim wants the world to know the details—some of which may be intimate—of what she endured.
Right now, the law permits plaintiffs in these circumstances to enter into confidential settlements with employers to receive the compensation that they deserve while keeping their identities and what they suffered privately. Indeed, the possibility of such a confidential settlement is often a catalyst for victims who might otherwise not come forward at all. For example, a woman seeking new employment in the same industry may not want her next employer to know the details of harassment that she suffered, or the compensation that she received. This concern may be particularly acute in circumstances where the perpetrator and the future employer have business ties. In these circumstances, a confidential settlement preserves the plaintiff’s right to recover while without forcing her to tell her new employer that she was a victim.
Settlement agreements are often written to specify exactly what the previous employer may tell prospective and future employers about the employee’s tenure and reasons for departure. Typically, these agreements permit employers to verify the dates of employment, the titles held, and, if authorized, salary history. Such a provision empowers employees by giving them control over what future employers know about their past employment.
Those calling for confidential settlements remind us that confidential settlements often provide a mechanism for perpetrators to hide harassment and victimize others. This certainly happens. But the possibility of remaining anonymous also encourages victims to come forward. Not every victim wants to be known; many just want what they deserve: compensation for the harassment that they suffered and the economic opportunities that they lost. These victims need not subject themselves to public scrutiny to get what they should have received but for a harasser’s unlawful acts. And those victims who do want to speak out may still reject provisions that would muzzle their ability to do so.
Each year, employment lawyers at Sanford Heisler Sharp in New York, DC, California, and Tennessee bring cases on behalf of hundreds of women who seek to remain anonymous. These women often do not want the attention attendant to a public filing; rather, they seek a severance agreement that offers compensation for harm suffered and an opportunity to quietly move on.
Even in litigation, Sanford Heisler Sharp's gender discrimination attorneys in New York and DC have successfully filed cases on behalf of Jane Doe plaintiffs. These cases offer plaintiffs an opportunity to avoid public scrutiny by filing the case under the “Jane Doe” pseudonym. By masking the plaintiff’s identity to the public, the plaintiff can ensure that future employers are not improperly (or unlawfully) swayed by the plaintiff’s actions in making employment decisions, while perpetrators are nonetheless exposed. For victims, this possibility remains a powerful motivator in coming forward and undercuts an intimidation tactic—often used by the defendant’s bar—of threatening plaintiffs with publicity.
Every settlement agreement is unique. Employees considering a severance should contact an employment attorney to understand fully their options.