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Two decades after Anita Hill: how workplaces are handling sexual harassment

Sexual misconduct allegations against GOP presidential hopeful Herman Cain have put a spotlight on secret settlements, which many businesses are turning to in sexual harassment cases.

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It's also possible that the number of confidential settlements has meant fewer claims filed with the EEOC.

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To be sure, the claims figures don't capture the full scope of sexual harassment, says Christine Nazer, a spokeswoman for the EEOC.

"We believe these numbers of sexual harassment are the tip of the iceberg," Ms. Nazer says. "There may be thousands or millions of incidents that go unreported."

Some estimates suggest that only 5 to 15 percent of those who feel they experienced sexual harassment file complaints.

The handling of those claims that are filed tells an interesting story. Of the 11,717 claims last year, some 6,393 were found to have "no reasonable cause." That is, more than 50 percent of the claims were thrown out. This points to a broad misunderstanding of what actually constitutes sexual harassment, says Curt Levey, executive director of the Committee for Justice in Washington and an attorney specializing in civil rights law.

"The public definition has become very different than the legal definition," he says. "It's not behavior I would approve of, but there's a big difference between crude behavior and actual sexual harassment.... Title VII and other sexual harassment laws were intended to protect people from adverse conditions in the workplace, not from every unwanted sexual advance."

Also, in some cases, as with Cain and former International Monetary Fund chief Dominique Strauss-Kahn, it is difficult to establish the veracity of accusers. Many incidents become a tangled web of "he said, she said" allegations.

According to Mr. Levey, confidential settlements can be an efficient way for an employer to settle a claim, whether or not it constituted sexual harassment.

The use of in-house arbitration and confidential settlements became standard practice in the early '90s, when President George H.W. Bush signed into law the Civil Rights Act of 1991. This allowed sexual harassment plaintiffs to receive money for emotional distress and punitive damages, says Professor Berebitsky.

"Companies could take a bath if found guilty," she says. "Employers said, 'We have got to limit liability.' That gave employers an impetus to get on the arbitration train."

Today, many employers require their workers to sign arbitration agreements that say, "in case of any claim of discrimination, you won't go to the courts but agree to enter into binding arbitration," says Berebitsky.

That tactic shields harassers and employers from accountability, says Professor Yamada.

"I am very concerned about confidentiality clauses being standard practice," he says. "If harassers are not disciplined or discharged as part of the settlement, it's quite possible that they will mistreat others in the same way.... Overall, confidentiality clauses allow bad employers to cover multitudes of sins."

Levey disagrees. "The efficient functioning of the justice system depends on the large majority of complaints – sexual harassment and otherwise – being settled. If confidentiality provisions were barred, there would be less incentive to settle and thus more litigation," he writes in an e-mail. "Moreover, it would hardly be justice to hold accused employers and harassers publicly accountable when the evidence of guilt is scant, as is often the case for settled complaints."

Michael R. Masinter, a law professor at Nova Southeastern University in Fort Lauderdale, Fla., sees the issue of public accountability differently.

"[T]he combination of arbitration agreements ... and confidential settlements can conceal the scope of a problem that, were it known, would inspire public outrage," he writes in an e-mail. It leaves "the false impression that sexual harassment is a thing of the past when it is still very much a part of the contemporary workplace."

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