Sunday, November 6, 2011

The Cain Controversy: The impact of confidentiality

The media reports of the allegations of possible sexual harassment by Herman Cain have once again brought the subject of sexual harassment in the work place to the public's attention.  No one disputes the proposition that sexual harassment in the work place is illegal and inappropriate.  The work place has changed as employers and employees have recognized that what once might  be viewed as "jokes" or harmless banter is now done at the speaker's risk.

While there are still reports of conduct which, if true, would be outrageous, many of the claims today are not as clear cut.  There are cases where the accused denies that conduct occurred at all.  It is this classic "she said, he said" situation with no other documentation or witnesses that is the most challenging for employers.

A claim of sexual harassment in the contested case takes a toll emotionally on the accuser, the accused, and the employer.  In some cases of "she said, he said" claims of harassment, employers choose to resolve such cases with a settlement to avoid all parties of the emotional wear and tear without attributing fault to either party.

To the person who believes he or she has been wrongly accused, the promise of confidentiality is important since the opportunity to clear one's name  did not exist.  Confidentiality agreements in these cases are not used for the purpose of "covering up' allegations but are intended to bring closure to all parties.  A recent Forbes article describes settlements as an everyday corporate occurrence.

The allegations concerning a presidential candidate and his work history leads to a greater scrutiny of his personal life, and the current controversy is not unexpected.  To the individual in the work place who is relying on confidentiality to move on, the current controversy is unsettling. The thought is "could this happen to me?" Hopefully, the current controversy will remind employees and employers that sexual harassment is unacceptable without undercutting the perception of the effectiveness of confidentiality agreements.

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