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October 17, 2017 Practice Points

The Whoopi Goldberg Rule: Say No to Confidentiality

It is time for business to stand up, admit that there is a problem, and be part of the solution.

By Charla Bizios Stevens – October 17, 2017

In the wake of the latest of a series of shocking, or perhaps not-so-shocking, sexual-harassment scandals, Whoopi Goldberg voiced her opinion on women who accepted settlements from their employers and promised confidentiality:

Speaking of the Weinstein revelations this week on the talk show “The View,” Goldberg made a plea for women to stop taking payouts in exchange for keeping silent about harassment. "We need to start talking to our sisters and say, ‘You do not have to take this,’” Goldberg said. “’Your career does not rise and fall on this. Because if you take this, people are going to assume that you’re OK with the behavior.’”

Whoopi’s solution might work for the likes of Gretchen Carlson and Kate Winslet—wealthy and accomplished women, well-established in their careers. But what of the 19-year-old intern or the single mom who works paycheck-to-paycheck as an administrative assistant? Do we ask them to file a discrimination charge with the Equal Employment Opportunity Commission and stay at a workplace where they are being harassed and threatened? Should they quit with no payment?

Even Mayim Bialik of the hit series The Big Bang Theory, has come out to say that as a 41-year-old actress, she still makes choices she thinks of as “self-protecting and wise.” Those choices include dressing modestly and not acting flirtatiously with men.

Are we once again asking women to step up to solve a problem they didn’t create? With due respect to men harassed by women, and women and men harassed by offenders of the same sex, the vast majority of victims are women and perpetrators men. The victim is rarely the person with power, monetary or otherwise.

Most employment attorneys are aware of the findings contained in the Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace, issued in 2016, which unsurprisingly concluded that sexual harassment remains a significant workplace issue and that efforts at workplace training has done little to control it. It is hard to think that women turning down six-figure settlements and dressing modestly will do the trick.

As an attorney who spends most of my time assisting employers who genuinely want to provide safe and comfortable work environments for all employees and defending them when the issue is in dispute, I have to question whether the time has come for businesses to step up more publicly to be part of the solution. Private secondary schools have faced this challenge head-on recently, by refusing to protect proven perpetrators of abuse with secret agreements.

To be sure, there is still a need for confidentiality and non-disparagement clauses in settlement agreements. When the facts are contested or when there is real possibility that the claims have little merit, parties do still come to settlements, some involving payment. In those instances, confidentiality is critical for the protection of all. However, when there is proven misbehavior, one can question the legitimacy of silencing the victim if he or she wants to share the story and perhaps protect others from a similar fate. It is time for business to stand up, admit that there is a problem, and be part of the solution.

Charla Bizios Stevens is with McLane Middleton, a professional association in the greater Boston, Massachusetts, area.

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