After Weinstein, No Jump in Federal Harassment Charges

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By Chris Opfer

The Equal Employment Opportunity Commission hasn’t seen a spike in sexual harassment claims, despite the fallout from the Harvey Weinstein scandal and advent of the #MeToo movement, Chairwoman Victoria Lipnic said Feb. 2.

The agency has seen four times the amount of visitors to its website since the sordid details of allegations against movie mogul Weinstein in October began a wave of similar complaints against other public figures, Lipnic said. “But that has not yet translated into a surge in actual charges of discrimination being filed,” Lipnic told a group of lawyers at New York University.

The EEOC enforces federal law banning sex bias and other forms of discrimination in the workplace. Sexual harassment on the job is considered a form of sex discrimination.

Weinstein was canned in early October, following a New York Times report that he had secretly settled sexual harassment claims with at least eight women. A wide range of high-profile figures in entertainment, media, and politics have since faced harassment allegations.

Feds Looking at Nondisclosure Agreements

The EEOC is sticking to its position that nondisclosure agreements in employee contracts and sexual harassment settlements may violate federal workplace discrimination law, Lipnic told Bloomberg Law. Those pacts have come under fire in recent months, with critics painting the agreements as a legal shield that allows serial harassers to go unpunished.

The EEOC has previously said at least some disclosure restrictions unlawfully limit workers’ rights to communicate with each other about harassment and participate in investigations. The agency sued CVS Pharmacy in 2014, challenging the drug store chain’s nondisclosure and nondisparagement provisions in standard severance agreements. Lipnic said the case still reflects the EEOC’s enforcement policy but added that the legality of any agreement depends on the specific language in the contract.

“Of course the CVS agreements—if you looked at the language—were pretty restrictive in terms of whether people could then come to the EEOC with a charge” Lipnic said. “I think we have to look at the language” in employer pacts and see “if there is in fact a chilling effect on people coming to the EEOC.”

A judge eventually dismissed the CVS lawsuit on procedural grounds, without getting to the question of whether the agreements violated workplace discrimination law.

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