The #MeToo movement started more than a year and a half ago. Somewhat surprisingly, the number of sexual harassment cases filed has not increased significantly. However, we’ve seen significant changes in how those cases get handled and resolved. For one thing, more claims get resolved before litigation gets filed. Employers who want to avoid the negative publicity of a sexual harassment claim have a powerful incentive to settle early. Once employees publicize their accusations, it may be impossible to undo the damage to a company’s reputation.
This is especially true in California, where employers settling a sex harassment case can no longer prevent plaintiffs from disclosing the factual basis for the claim. Before 2019, a settlement would typically require the plaintiffs to refrain from repeating the factual basis for their claims. No employer wanted to settle with the plaintiff and have the plaintiff continue publicizing his or her accusations. That changed with the adoption of California Code of Civil Procedure § 1001. Now, you can keep the settlement amount confidential and, as long as the case is against a private employer, you can keep the claimant’s identity confidential. But plaintiffs can’t agree not to disclose the factual basis for their claims even if they want to. As a result, employers have greater incentive to settle before litigation gets filed, since § 1001 doesn’t yet apply.
Another change is that many employers have stopped requiring employees to arbitrate harassment claims. They often do so in response to public pressure, such as this recent editorial arguing that “Mandatory Arbitration Enables Sexual Harassment.” These efforts to vilify arbitration are unwarranted. Plaintiffs’ employment lawyers have been battling against arbitration forever, largely because they know that jurors are more likely to be swayed by emotion and to see things from the plaintiff’s perspective. An arbitrator who has experience in a particular area of law is every bit as capable of reaching the right conclusion as a jury. And plaintiffs in arbitration are just as capable of publicizing their claims as plaintiffs in court. Arbitration is simply another method of resolving disputes. It no more enables sexual harassment than music enables people to dance poorly.
Some things haven’t changed. One is that prevention has to be a priority. The best way to prevent harassment is to ensure that people know what’s prohibited and where to go if they have concerns. For this reason, California requires most employers to train all of their employees in the state. Second, as I’ve said many times before, harassment litigation is less about what the harasser did than what the company did in response. Employers who learn of harassment in their workplace need to act immediately to address the situation. Often, that requires guidance from experienced counsel. The cost of getting legal advice on how to respond to these issues is a fraction of the cost of litigating these claims.