How the EEOC’s Maintenance of an 'Alleged Offenders' Log Can Help Prevent the Next Harvey Weinstein

As employers struggle to adapt to the new “normal” created by COVID-19, it is important not to lose sight of lessons learned from the recent #MeToo and #TimesUp movements. Nondisclosure agreements (NDAs) are today thought to play a significant role in enabling serial harassers in American workplaces.Therefore, legislators have proposed either banning NDAs altogether when the allegation involves sexual misconduct or allowing NDAs only when requested by claimants and empowering them to reach agreements on favorable terms. However, these solutions inadequately respond to a significant, but narrower problem involving “superstar” or “rainmaker” employees. For most employers, investigating harassment allegations has always been important from the perspective of workplace morale and liability avoidance and, in our experience, employers take such allegations seriously showing little tolerance when presented with credible cases. The same cannot be said of misconduct committed by “superstar” or “rainmaker” employees and others who generate significant revenue flows or hold high executive positions in the companies they dominate. Beyond the prospect of being held strictly liable, a corporation’s financial position can be threatened when facing harassment claims against a superstar employee. Therefore, the all too expedient action is to offer claimants a settlement agreement that ensures each party’s confidentiality. This is especially true where allegations lack concrete evidence and rely solely on the testimonies of the claimant and alleged harasser. The problem, however, is one of recidivism, when multiple allegations are raised against the same employee over time. Where there is a pattern of misconduct, we would ordinarily expect the company’s human resources function to insist on the repeat offender’s termination. Yet for superstars and rainmakers, HR departments frequently lack the internal influence to respond appropriately and prevent ongoing abuse. It is simply unrealistic to expect employers to properly police themselves when faced with such competing incentives. In our view, the Equal Employment Opportunity Commission (EEOC or Commission) has a special role to play in counteracting the spiral that allows recidivist abusers to escape punishment for their misconduct—one that lies in reforming how the agency oversees claims of harassment. Based on its authority under Title VII of the Civil Rights Act of 1964, the EEOC could promulgate a new rule that requires employers to report basic information to the Commission whenever it reaches an agreement that includes nondisclosure provisions purporting to resolve a sexual misconduct claim. The Commission would then maintain a log of these reports, studying any unusual patterns involving the same employee or company. Should such a pattern emerge, the EEOC could then initiate a Commissioner Charge on its own accord under another Title VII provision. This solution can be modeled by the Department of Labor’s Occupational Safety and Health Administration’s reporting scheme for workplace incidents and other comparable initiatives used by private colleges and universities. Importantly, the proposed offenders log also balances the relevant interests of employers, claimants, and the public alike by bolstering the resolve of in-house counsel and HR to address seriously the sexual harasser recidivists within their company, without preventing resolution of disputes between first-time alleged offenders and victims in a manner which avoids reputational harm to all parties.