Sexual harassment takes on many forms in the workplace, but dealing with complaints of inappropriate behavior tends to follow a more scripted playbook.
Companies often take a defensive posture when confronted with a sexual harassment complaint, said Lynne Sholler, a lawyer who practices employment law in Durango. Companies seek to mitigate their legal and financial exposure, while taking steps to protect their reputations.
It is not uncommon for companies to settle sexual harassment complaints before they reach the court system, and they often insist on non-disclosure agreements to keep the matter quiet, Sholler said.
Sholler represented Marti Gregerson, who filed a sexual harassment complaint in 2010 against John Schmier, director of Hilltop House, a community corrections center for criminal offenders in Durango.
Schmier remains in his position at Hilltop, despite allegations of sexually inappropriate behavior dating to 1999. Sholler agreed to talk about sexual harassment litigation but declined to discuss Gregerson’s case specifically.
Sholler, who has been practicing civil law for 27 years, including 17 years in Durango, said she has handled about 25 sexual harassment claims in Durango. Some were settled before a formal lawsuit was filed, others were settled after litigation.
“The usual process is you send a demand letter,” she said. “Often parties settle for business reasons before filing suit.”
Going to court is often an expensive, time-consuming and emotionally taxing endeavor, she said.
It can cost at least $200,000 to take a case to trial, and the process can last two to seven years, Sholler said.
“A lot of times (victims) cave due to the emotional stressors as well as the financial stressors,” she said.
Trial lawyers don’t go easy on victims, she said.
“You get shamed like you were naive or you were asking for it or you were dressing provocatively or ‘what kind of underwear were you wearing,’” Sholler said. “They turn it around and blame the victim, so who wants to go through that? A lot of these victims or survivors have a lot of guilt: ‘How did I let myself get in this situation? Should I have seen it coming?’”
It is often easier and cheaper to settle sexual harassment complaints.
But settlement agreements often result in payouts to the victims, she said. That is sometimes called “hush money” because it often comes with a non-disclosure agreement.
The #MeToo movement – a social movement against sexual harassment and assault – has created something of an “awakening” among men in general and men in leadership roles, making them more aware that their conduct that used to be chalked up to “boys will be boys” is unacceptable and, in some cases, illegal, Sholler said.
“We need to work on changing that culture, and culture has to come from the top, so our leaders and boards and whatnot have to be the ones that role-model appropriate conduct and take corrective action,” she said.
In Schmier’s case, the board of directors of Hilltop House was aware of his behavior but have allowed him to remain employed.
Women are believed more when it comes to sexual harassment, which creates the potential for higher monetary awards, but a problem persists with non-disclosure agreements.
Some people have suggested eliminating non-disclosure agreements in sexual harassment and sexual assault cases, but doing so could result in even lower payouts to victims, Sholler said.
“What they’re paying for is the silence,” Sholler said. “... There may be the potential for lower settlements if the confidentiality agreement provisions are written out of the settlement agreements.”
To mitigate their exposure, employers are likely to investigate sexual harassment claims only to say no wrongdoing was found or whatever happened was not that big of a deal, Sholler said. A typical clause in settlement agreements includes a stipulation that the company does not acknowledge liability.
“They claim nothing was wrong, and therefore, we don’t have to discipline the person,” Sholler said.
It is difficult to know whether sexual harassers face consequences from their employers after reaching a settlement.
It’s not uncommon for companies to favor accused harassers.
In some cases, companies have determined the executive is too big of a moneymaker or too good at other aspects of his job, and is simply too valuable to lose, she said.
“I’ve represented many victims where the chief executive person is the one doing the harassing, and for whatever reason, the defendant (a company) keeps the harasser and fires the victim,” Sholler said. “They stay on in power and remain emboldened, which is unconscionable to me.”