As soon as an employee files a sexual harassment complaint, the employer should commence a corporate investigation, purportedly to seek out the facts of the case. However, these investigations are often kept confidential. In some cases, the person who filed the claim is not even permitted to know the outcome.
This begs the question: what precisely was the investigation meant to accomplish in the first place? This question touches on a larger phenomenon, one that has become all-too apparent with the recent disclosures of the #MeToo campaign. In light of these disclosures, it is no longer possible to hide the fact that women around the country are harassed on a daily basis. They are harassed at home, in the streets, at work and anywhere else gender-oppression rears its ugly head. What’s worse, various societal mechanisms (formal and informal) serve to suppress this fact from public view, so that with a slight of hand, sexual harassment always appears to be something that happens “over there” but never “over here.”
This is no accident. Power works to maintain itself. Thus, to answer the above question, some corporations carry out investigations, not because they wish to rout out the cause of sexual harassment, but because they wish to serve their own interests in the case-at-hand. Employers know full-well that in order to comply with federal regulations, they must investigate claims. And by maintaining confidentiality, the company may seek to protect itself against further legal action. What’s more, even if you, as the employee, want to inquire about the investigation, you may have no legal right to access such information. Many legal departments advise employers to hide behind confidentiality clauses rather than advertise the complaint and the ensuing enquiry.
Confidentiality is also an issue when it comes to settlement agreements. Very often, companies will insist on attaching confidentiality clauses to sexual harassment settlements. They may claim that they’re paying the plaintiff for their silence, but more often than not, the business is offering a settlement in order to drop the claims. Nonetheless, silence is imperative for corporations who want to sever their link to sexual harassment. Thus, cloaked in confidentiality agreements, survivors of sexual assault are left to suffer alone, unable to tell their story and warn others.
There may be a small atom of hope in the new tax law (the Tax Cuts and Jobs Act), which prohibits tax deductions for “business expenses paid or incurred for” settlement agreements related to sexual harassment, when said agreements include non-disclosure clauses. Essentially, the law attempts to incentivize companies to forgo confidentiality agreements. However, it isn’t clear that deductions will bait companies into allowing sexual harassment to be disclosed.
What would happen if an employer made investigations public or a company skipped non-disclosure agreements? How would this affect the behavior of harassers? We have seen the somewhat salutary effects of the recent disclosures, which have been followed, in some cases, by (half-hearted) apologies. Despite some of the lazy (and arguably immoral) reporting around these issues, the #MeToo campaign has lent itself to a culture of accountability.
Suffice it to say, there’s more work to be done at the level of accountability – for instance, in the mad rush to profit off this wave of disclosures, the mainstream media has put so much focus on the offenders, that the victims have been lost in the noise – but one positive step would be transparency in the workplace. If employees are made aware of harassment when it occurs, they can be more conscious of their surroundings and rally to support the person harmed by the perpetrator – if of course that’s what the harmed person wants. When companies choose transparency over opacity, they ultimately side with those being harmed and not those dealing the harm.