He Xia. Exposing Secrets: U.S. Anti-Sexual Harassment Legislation in Response to the “Me Too” Movement

打破秘密: 美国反性骚扰立法对“我也是”运动的回应

Author: He Xia
作者:何霞
Translated by Amanda Morrison with Allen Clayton-Greene


The “Me Too” movement has placed sexual harassment, which is prohibited by American law but remains commonplace, right at the heart of the storm. Since the accusations of sexual harassment against Harvey Weinstein exploded into the limelight, there have been daily news reports of sexual harassment, in various sectors: the entertainment industry, the US Congress, business executives, the doctor to the US gymnastics team, and senior government officials. The perpetrators   have been fired, forced to resign, faced lawsuits for high damages and have even been sentenced to life in prison as a result.

The reason why ten or more years passed before victims stood up and said “Me Too,” is not only because of factors such as emotional pain, the feelings of shame, concerns about privacy and the need to maintain employment and survive, but there are also institutional obstacles that keep sexual harassment secret and prevent victims from speaking out. This secrecy has led to victims being unaware of the risks of sexual harassment because they simply do not know about violations that have previously occurred. These institutional obstacles include confidentiality agreements and compulsory arbitration agreements, which force employees to act separate from each other and silence victims. They make it very difficult for employees to tell others what happened to them. They also prevent victims from bringing class action lawsuits to vindicate their rights.

America’s legislative organs and legislators have, in the wake of the “Me Too” movement, passed revisions to the tax code, and have passed bills proposing to end confidentiality for sexual harassment as well as a bill to end mandatory arbitration, in the hope that more people will stand up and swiftly bring an end to sexual harassment, sexual assault, and gender discrimination.

“Me too”(“我也是”运动)将美国法律禁止却又普遍存在的性骚扰推到了风口浪尖。从哈维·温斯坦的性骚扰指控曝光开始,每天都有性骚扰的新闻报道,演艺界、议员、企业高管、体操队队医、政府高级官员因为性骚扰的指控或曝光而被辞退、辞职、面临高额索赔,甚至被判处终身监禁。

受害者们之所以过了十年甚至更久才站出来说“我也是”,除了性骚扰带来的耻辱感、精神痛苦、对隐私的顾及,保住工作机会的生存需要等因素外,还有一些制度性的障碍,让受害者不能说,让其他潜在的受害者不知道,使得性骚扰成为秘密。而制度性的障碍中就有和解保密协议以及强制仲裁协议,这些协议把员工分散化,封住了受害人的口,使员工很难告诉他人自己的遭遇,也很难通过集体诉讼来实现权利。

美国立法机构和立法人员在“我也是”运动的推动下,通过税法的修订,通过终结性骚扰秘密法案、终止性骚扰强制性仲裁法案的提出,希望让更多的人可以站出来,及时地阻断性骚扰、性侵犯和性别歧视。

 

Tax Law Revision Increases the Cost of Confidentiality Agreements

税法修订增加保密协议成本


On December 22, 2017, President Trump signed into law the Tax Cuts and Jobs Act, amending the 1986 Internal Revenue Code to reduce corporate and individual tax burdens. However, Section 162(q) of the Act clearly stipulates that if a business signs a confidentiality agreement with a victim of sexual harassment or abuse, then the related expenses, such as settlement costs and attorney’s fees, are not tax deductible. Prior to this, settlement fees and expensive attorney fees had been considered “ordinary and necessary business expenses,” which were tax deductible. Senator Menendez (D-NJ), who proposed this part of the tax bill, declared that by increasing the cost of companies covering up misconduct, they would be encouraged to effectively prevent sexual harassment.

According to Title VII of the American Civil Rights Act, workplace sexual harassment constitutes gender discrimination. Employers bear legal responsibility for sexual harassment because they have not fulfilled their obligation to provide a safe work environment. From the plaintiffs’ perspective, an employer that exists as an organization is more financially capable of bearing the burden of any award of damages than the individual who committed the harassment. From the lawmakers’ perspective, apportioning risk among those who are most capable of controlling that risk is consistent with economic principles.

Before the tax bill was passed, employers tended to settle after paying victims of sexual harassment a fixed amount of financial compensation. Moreover, within settlement agreements, victims signed a confidentiality clause, which silenced them. Generally, the behavior of harassers follows certain patterns and is repetitive. Confidentiality agreements expose employees to the continued risk of  being sexually harassed, and render work environments as unsafe as they were previously. In fact, these kinds of corporate expenditures were tax deductible, and firms could purchase liability insurance, which enabled them to pass on the risk. This makes the handling of sexual harassment an economic matter.

The partners of the law firms we visited, which provide legal services for employers, told us that prior to the “Me Too” movement, after taking economic responsibility, employers usually handled sexual harassers by transferring, demoting, or even simply failing to deal with them at all. For those senior executives who brought the company high returns, substantial punishment was rare. But after the “Me Too” movement, companies are inclined to fire executives – even those running the company – who have been accused of sexual harassment, or have asked them to resign.

In an anti-sexual harassment seminar held at New York University Law School this February, an HR director at a Fortune 500 company responded to why companies are now paying more attention to sexual harassment. The HR director said that the first concern is that public media reports affect the company’s image; the second is expensive economic compensation; the third is the impact on company culture and cohesion.

 

 


2017年12月22日美国总统特朗普签署实施的《减税与就业法案》(Tax Cuts and Jobs Act)对1986年《国内税收法》(the Internal Revenue Code)进行了修订,减轻企业和个人的税收负担。但是在该法的第162条却明确规定,如果企业与性骚扰、性虐待的受害人达成保密协议,那么有关的和解费、律师费等费用就不能再进行税收抵扣。而在此之前,和解费和不菲的律师费可以通过“普通、必要的企业支出”进行税收抵扣。对该法条进行提案的参议员梅内德斯主张,通过增加企业掩盖不当行为的成本来敦促企业有效地防治性骚扰。

根据美国《民权法案》第七章规定,工作场所的性骚扰构成性别歧视,由雇主承担责任,其法理基础是雇主没有尽到提供安全工作环境的义务。而对于原告来说,作为组织体存在的雇主显然比实施骚扰的个人更有经济能力来承担损害赔偿责任。而对于立法者来说,把风险分配给最有能力控制风险的人也是符合经济原则的考虑。

在该法案通过以前,雇主倾向于对性骚扰的受害人支付一定的经济赔偿后进行和解,并且在和解协议中签署保密条款,让受害者沉默。而通常骚扰者的行为具有一定的模式和反复性,保密协议使得其他员工仍然面临被骚扰的危险,工作环境依旧不安全。而公司的这种支出实际上可以获得减税,还可以事前通过购买责任保险将风险转嫁。这使得性骚扰的处理变成了经济问题。

我们访问的几个专门为资方提供法律服务的律师事务所的合伙人告诉我们,“我也是”运动以前,雇主承担经济责任后通常采取调岗、降职甚至不作为的方式来处理骚扰者,而对于那些可能给公司带来高额回报的处于重要位置上的高管人员,很少对其实质性的惩戒。但“我也是”运动之后,公司则倾向于对被指控性骚扰的高管甚至是公司的实际控制者进行解雇或者要求其辞职。

在今年2月纽约大学法学院召开的反性骚扰的研讨会上,一些世界500强公司的人力资源主管在回应公司现在为什么重视性骚扰时,说第一是担心公共媒体的报道影响企业的形象,第二是高昂的经济赔偿,第三是对公司文化和凝聚力的影响。

 

Bill to End Secret Settlement Agreements

终结秘密和解协议提案

A confidentiality agreement—in addition to requiring the victim to refrain from making statements to other people or to the public media—also restricts a victim’s right to sue in court. As well as applying economic pressure on companies through the tax law revision, members of the US Congress have also proposed to abolish confidentiality agreements that restrict a victim’s legal rights, arguing the agreements conceal illegal incidents of sexual harassment.

In December 2017, Representative Maloney (D-NY) and other representatives put forward the Ending Secrecy About Workplace Harassment Act, which would require employers to annually report the number of settlement agreements involving sexual harassment, sexual assault, and sexism to the US Equal Employment Opportunity Commission (EEOC).

Lawmakers in California, New Jersey, New York, Pennsylvania, and Washington, DC, have, in turn, put forward proposals calling for state legislation to abolish confidentiality agreements that restrict victims’ right to appeal.

 

在保密协议中,除了要求受害者不得对他人、公众媒体陈述外,还限制了受害者向法院提起诉讼的权利。除了通过税法修订对雇主施加经济压力,美国国会议员还通过提案的方式要求废止保密协议对受害人诉权的限制,认为该协议使得性骚扰这种违反法律规定的行为藏于秘密之中。

民主党派的马洛尼(Maloney)等众议员于2017年12月提出《终结工作场所性骚扰秘密》议案(Ending Secrecy About Workplace Harassment Act),要求雇主必须每年度定期向美国平等就业机会委员会(EEOC)报告雇主通过和解协议处理的涉及性骚扰、性侵害、性别歧视的案件。

加利福尼亚、新泽西、纽约、宾夕法尼亚州、华盛顿特区的议员们也纷纷提出了类似的提案,要求在州的层面立法废止保密协议对受害者诉权的限制。

Bill to Invalidate Mandatory Arbitration Agreements

强制仲裁协议无效提案

On December 6, 2017, Senator Gillibrand (D-NY) proposed the Ending Forced Arbitration of Sexual Harassment Act, which would render invalid and remove enforceability for preemptive mandatory arbitration agreements signed by employers and employees—which limit employees’ rights to appeal a sexual harassment case.

When an employee joins a company, he or she will usually sign a mandatory arbitration agreement at the request of the employer as a prerequisite for obtaining the job. In labor disputes, including those occurring after instances of sexual harassment, an employee can only seek arbitration and cannot file a lawsuit in court. It is actually a requirement for employees to give up their right to appeal.

According to a 2017 study by the US Economic Policy Institute, currently 53.9% of non-union member employees have signed mandatory arbitration agreements, and within companies hiring more than 1000 people, 65.1% of employees have signed.

Arbitration is a closed adjudication procedure, and the investigation of the facts and determination of legal liability tend to favor the employer. Unlike a court hearing, there are no discovery procedures for complex evidence, nor are there punitive damages. Compulsory arbitration means that employees who have encountered sexual harassment or discrimination cannot resolve matters in court, the victims stay out of the public’s view, and in some instances, a perpetrator may continue to engage in misconduct for years without receiving due punishment. Therefore, compulsory arbitration agreements are considered to be a contributing factor in long-term, ongoing workplace sexual harassment.

Although the bill still has not yet been passed, the proposal has already had a positive effect on HR management of large companies. According to a New York Times report from December 19, 2017 (Beijing time), Microsoft has already publicly stated that employees who have suffered from sexual harassment will be released from compulsory arbitration agreements, and that it supports the adoption of a federal law that completely prohibits such agreements.

 

2017年12月6日,参议员吉利布兰德Gillibrand提出“终止性骚扰的强制性仲裁法案,” 该法案规定如雇主与雇员事先签订强制仲裁协议(mandatory arbitration),限制雇员对性骚扰行为的诉权,那么这项协议是无效的,不具有强制执行力。

在雇员入职时,他/她通常会应雇主要求签订一份强制仲裁协议作为获得工作的前提。在劳动争议,包括性骚扰发生后只能去寻求仲裁,而不能诉讼到法院,实际上也是要求员工对自己诉权的放弃。

据美国经济政策学会2017年的一项研究表明,目前有53.9%的非工会会员的员工签署了强制仲裁协议,而雇佣超过1000人的公司中,65.1%的员工签订。

仲裁是一个封闭性的裁决过程,在事实的查明和法律责任上更有利于雇主,它没有像法院审理那样有复杂的证据开示程序,也没有惩罚性赔偿。强制仲裁使得员工遭遇性骚扰和歧视的事件不会通过法院解决,避开了公众视线,在有些情况下,也使得实施骚扰的人能连续数年作恶而不会受到应有的惩罚。因此强制仲裁协议被指责为工作场所性骚扰长期存在的帮凶。

虽然该法案还没有通过,但该法案的提出已经对大公司的人力资源管理具有积极的影响。根据《纽约时报》北京时间12月19日的报道,微软已经公开表示,与声称遭遇性骚扰的员工解除了强制仲裁协议,并支持通过全面禁止这类协议的联邦法律。

Proposals to Establish Sexual Harassment Training Mechanisms

建立性骚扰培训培训机制提案

US federal law does not require employers, including private companies or the government, to set up internal anti-sexual harassment training mechanisms. Instead, it regulates the issue from the perspective of exemption from liability. Where sexual harassment accusations are made and alleged to have taken place in a “hostile work environment,” an employer can be exempt from liability if it can prove that the company already provided the victim with reasonable complaint and relief procedures, and that the victim unreasonably failed to use them. This kind of system design incentivizes companies to adopt policies that actively prevent internal sexual harassment.

Before “Me Too,” California and Connecticut had clear state laws requiring employers to formulate measures to prevent sexual harassment, discrimination, and retaliation.

After many members of Congress were faced with allegations of sexual misconduct, Congress approved legislation requiring all 535 Congress members and their employees to receive mandatory anti-sexual harassment training. Maine and Virginia also proposed that employers with more than 15 employees must require mandatory anti-sexual harassment training.

On February 6, 2018, the House of Representatives overwhelmingly passed legislation by voice vote that would reform the way Capitol Hill handles sexual harassment cases, aiming to streamline the complaint process and improve public transparency. The bill would no longer require Congressional staffers to go through psychological counseling and mediation before filing a complaint. Instead, complainants would be able to immediately contact a lawyer and may choose to initiate an investigation or to file a federal lawsuit. When lawmakers settle sexual harassment charges, the legislation prohibits “public funds for private use,” and requires them to be personally responsible for any settlement fees. At the same time, the Office of Compliance would be required to publish statements online every six months, specifying the settlement fees and offices in which allegations of sexual harassment occurred.

The “Me Too” movement has given significant impetus to the prevention of sexual harassment in the US. I came to the US for an academic visit in mid-January. In three short weeks, I saw daily news about sexual harassment in the media and scrolling broadcast notices on the subway that said, “sexual harassment is a crime, if you experience sexual harassment on the subway, please notify our employees right away.” In the process of visiting the EEOC, federal judges, law offices, legal aid agencies and law professors, sexual harassment was always a hot topic of discussion.

Using a movement to promote social change has its advantages—it is rapid and passionate, it has attracted universal attention, and it will usually overcome opposing voices. But there also exists another challenge; how to protect the rights of perpetrators so that they receive a punishment that is proportional to their individual offenses? How do you prevent this kind of movement from becoming another form of oppression? Is there a rational response from a legal point of view? These are thoughts from outside the movement that also need to be considered.

(He Xia, Assistant Law Professor, Southwestern University of Finance and Economics)

 

 

在联邦法层面,美国并没有要求雇主,包括私营企业或者政府必须设立内部反性骚扰的培训机制,而是从责任的免除角度来进行规制。在涉及“敌意工作环境”性骚扰的指控下,雇主如果能证明公司已经为性骚扰的受害者提供了合理的投诉和救济程序,并且受害者不合理地没有能利用这些措施和程序,即可免责。这样的制度设计是给公司压力和动力,让他们采取政策,主动地防治内部的性骚扰。

在“me too”以前,加利福尼亚州和康涅狄格州有明确的州立法要求雇主制定防止性骚扰、歧视和报复的措施。

在多名议员被指称有不当性行为后,美国国会批准法案,要求所有535名议员和他们的员工接受强制性的反性骚扰培训。缅因州和弗吉尼亚州也提出对15以上雇员的雇主要求反性骚扰的强制性培训。

众议院还在2月6日通过口头表决,一致通过了一项改革国会性骚扰事件处理机制的法案,旨在简化投诉流程和提高公共透明度。该法案不再要求国会工作人员在投诉性骚扰前必须接受心理咨询和调解,而是允许控诉者立即接触代理律师,可选择发起调查或提起联邦诉讼。法案还禁止国会议员在和解性骚扰指控时“公款私用”,要求他们自己承担有关费用;同时要求国会纪律办公室每半年在网上公示用以和解性骚扰指控的花销和涉及性骚扰指控的办公室。

    “我也是”运动对美国防治性骚扰进行了很大的推动,我今年1月中旬来到美国进行学术访问,在短短的三周时间里看到媒体每天都有性骚扰的新闻,看到地铁里滚动播出的提示,“性骚扰是一种犯罪,如果你在地铁里遇到性骚扰,请及时告知我们的工作人员”。在访问平等机会委员会、联邦法院法官、律师事务所、法律援助机构、法学教授的过程中,性骚扰始终是个热点的问题。

以运动的方式推动社会变革有它的优势,迅速、有激情、得到普遍的关注,且通常会把反面的声音压下去。但这存在另一个问题,如何保障骚扰者的权利,让他们受到与自己的过错成比例的惩罚。如何不让这些运动成为另一种压迫?如果从法律的角度予以理性的回应?这是在运动之外也需要的思考。

(西南财经大学法学院副教授)

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A coalition of labor groups, including Global Labor Justice and the Asian Floor Wage Alliance, issued a report last month documenting extensive sexual violence and harassment at Walmart apparel supplier factories in Bangladesh, Cambodia, and Indonesia. In the study, ‘Gender Based Violence in the Walmart Garment Supply Chain’, women also reported retaliation when they refused sexual advances or complained about the mistreatment. The findings are based on interviews with 250 workers in 60 factories over a six year period.

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USALI Affiliated Professor Eva Pils Quoted in Guardian Article

April 28, 2017

China convicts rights lawyer Li Heping of 'subversion of state power'

Li, once told that China considered him ‘more dangerous than Bin Laden’, sentenced in secret trial to three years in prison with a four-year reprieve

A respected Christian human rights lawyer has been convicted of “subversion of state power” at a secret trial in China, almost two years after he was first detained in a sweeping crackdown.

Li Heping was sentenced to three years in prison with a four-year reprieve, the court in the eastern city of Tianjin said on an official social media account, meaning he should be released but could be arrested and jailed at any point.

The trial was held behind closed doors on Tuesday because “the case involved state secrets”, the court said, but was only announced along with the verdict on Friday.

 

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Li was swept up in a nationwide crackdown on rights lawyers and activists in July 2015, where police detained or questioned about 250 people. Since assuming power, China’s president, Xi Jinping, has launched a new wave of attacks on activists and the lawyers who defend them.

Li’s case drew attention around the world, and EU officials, as well as the embassies of 11 countries, called for his claims of torture while in custody to be investigated. His wife has said authorities used electric shocks on him.

“A suspended sentence does not mean he’s free until we actually get to see him and he’s allowed to speak freely, and given what we’ve seen in the past that probably won’t happen,” said Eva Pils, a professor at King’s College London and longtime friend of Li.

“It was a secret trial so we don’t know what state he is in,” Pils added. “In addition to our usual concerns about torture and physical health, I’m worried that this entire process may have robbed him of his mental health, especially after what they’ve apparently done to his brother.”

Li’s younger brother, Li Chunfu, emerged from 500 days of secret detention in January and was later diagnosed with schizophrenia, according to his family.

Li became well known for defending the disenfranchised, including Christian house churches, victims of forced evictions and free speech advocates. He worked within the scope of China’s legal system, rather than taking to the streets in protest. One Chinese security agent reportedly once told Li that the state considered him “more dangerous than Bin Laden”.

Although Li is likely to be released in the coming weeks, he has already spent more than 20 months in detention. At least 11 activists who received suspended sentences disappeared shortly after they were released, with some forced to undergo months of political education classes before being placed under house arrest by local police, according to human rights groups.

The court’s verdict was seen as a warning to other activists, and included a catalogue of vague charges, without citing any specific examples of illegality.

“The court ruled that since 2008, the defendant Li Heping repeatedly used the internet and foreign media interviews to discredit and attack state power and the legal system,” the court said. The court also accused Li of accepting foreign funds and employing paid defendants.

A lawyer hired by Li’s family to defend him was rejected by authorities and he was ultimately given a government appointed lawyer, an increasing trend in political prosecutions.

The conviction came on the same day that another civil rights lawyer, Xie Yang, was set to go on trial, but it was later cancelled.

Read the full article here.

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