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Sexual misconduct legislation keeps coming in the aftermath of the Harvey Weinstein scandal and the resulting #Metoo Movement. Recently, the state of California enacted a bill protecting survivors of sexual assault, sexual harassment, or discrimination by defining their speech as privileged. Under the new law, any communication made “without malice, regarding an incident of sexual assault, harassment, or discrimination” is considered privileged if the person making the statement had a “reasonable basis” to file a complaint for sexual assault, sexual harassment, or discrimination—regardless of whether a complaint is filed.  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=47.&lawCode=CIV

While the law is intended to encourage legitimate complaints of sexual harassment and sexual assault by reducing the risk of baseless defamation claims, the factual issues around these kinds of claims are often in dispute and may be difficult to prove. These cases also tend to be steeped in emotion, and both parties may fear aspects of the claim or case being made public.

Additionally, Congress enacted the Speak Out Act, 18 USC 2246, which prohibits enforcement of pre-dispute nondisclosure and non-disparagement clauses in sexual misconduct cases. After a dispute arises, employers may include non-disclosure clauses in a settlement agreement, but another law (Tax Cuts and Jobs Act) disallows employers from categorizing any payments as business expenses. Bottom line:  non-disclosure agreements will be tougher to enforce in the future.  https://uscode.house.gov/view.xhtml?path=/prelim@title42/chapter164&edition=prelim#:~:text=With%20respect%20to%20a%20sexual,%2C%20Tribal%2C%20or%20State%20law.

Here’s a closer look at some of the issues sexual misconduct claims present, and steps to take when a sexual misconduct claim is made.

Challenges the Parties Face

These cases tend to be emotionally laden. Plaintiffs may be traumatized by having to tell and retell. The story may change over time as s/he becomes more comfortable with telling the full story. This happens frequently. Keep in mind plaintiff is trying to protect his/her emotional health. In addition, the time lag between the incident and the time of reporting is typically a problem; the longer the time lag, the more difficult for both sides to prove their case.

It’s not only the time lag involved but the fact that these cases tend to have “he said/she said” allegations. Typically, documentation of the relationship, both at work and outside-of-work, exists such as emails, videos, or texts, but the behavior beyond that documentation is often disputed. Moreover, you must determine context and meaning. Different people may interpret communications/emojis/slang terms in a variety of ways.

The nature of the allegations involved in these cases can make them difficult to discuss. The nature of sexual misconduct itself is uncomfortable for everyone to talk about.  Plaintiffs may file under the pseudonym John/Jane Doe to hide their identities; and of course, plaintiffs who are minors will not be identified by name.

Challenges Defendants Face

Often the alleged harasser is upset, angry, and frustrated at the accusations. Most defendants contend the allegations against them are untrue, were taken out of context, or were exaggerated. Counsel may have a difficult time persuading the harasser of the high risk, publicity, and costs of litigation.

Be forewarned: clients and witnesses may be telling “less than the full story.” It’s embarrassing to talk about; clients fear what their co-workers will think; what their mothers will think; and if you, as the lawyer, will judge them. Assume clients will hesitate to talk about sexual misconduct.

Another complication occurs when the alleged perpetrator is no longer around. Maybe s/he is in jail or is no longer at the same company. No one can count on the person’s cooperation or even availability.

The Option of Mediation

For the foregoing reasons, attorneys on both sides of these disputes are increasingly turning to alternative dispute resolution (ADR) options like mediation to resolve these issues. The private nature of mediation is well-suited to resolve sexual misconduct cases.

Many times, plaintiffs feel guilty; they hesitate to report the sexual misconduct.  ADR protects the party’s confidentiality, but it allows the plaintiffs to feel that their problems are being addressed without the resulting publicity from a lawsuit. Moreover, plaintiffs must feel safe to meaningful engage and mediation provides a safe, calm, and judgment-free environment. That environment is the opposite of court, and good mediators gently remind the parties of that difference.

Offer mediation to your opponent before suit is filled. Federal and state courts are ordering mediation routinely, so consider reminding your opponent that you will be going to mediation anyway — so why not save the time and money and mediate first? Both plaintiff and defendant should exchange opening demands and offers to allow each side to advise all the necessary parties before the mediation. This gives us a much better chance to succeed at mediation.  Let’s talk more about this important topic.