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Binding arbitration and confidentiality agreements are two totally different things, that seem to be getting conflated here. There is a defensible argument for

Binding arbitration and confidentiality agreements are two totally different things, that seem to be getting conflated here. There is a defensible argument for not allowing mandatory binding arbitration for certain things. But eliminating the ability of parties to agree to a confidential settlement is a huge mistake. It will result in victims getting less money. An allegation of harassment, without further evidence, is not going to fare well in court. Yet the accused might be willing to pay a settlement to put the matter to rest and avoid negative publicity. By prohibiting them from getting confidentiality in exchange for payment, you have removed their largest incentive to pay the accuser. Further, a publicized settlement will be taken as an admission of guilt, which is a further incentive to go to court. And those accused, who may be innocent, are protected as well. They can avoid having their name smeared in the media, where they stand no chance of getting a fair hearing in the current climate.

gpm 9y ago
Accusers getting more money isn't good for the public. Incentive to settle without a fair trial in something as serious as sexual assault is not only not good for the public, it's bad for the public. Due process exists for a damn good reason. Preventing sexual assaults is good for the public, publicizing cases of sexual assaults may well have a tendency to do that. Based on your arguments above, I would come to the conclusion that NDAs on this should be banned. But I haven't thought enough about the topic to conclude that there aren't successful counter arguments.
- marcoperaza 9y ago
  It's a mutually beneficial trade. The accuser gets paid, without having to go through the rigors of a trial, where the defense counsel will impeach their character and try to convince the world that they are scheming liars or worse. The accused gets silence, instead of having their name run through the press and assumed guilty by the angry mob. Also, where did sexual assault come into this? Sexual assault is a crime. Sexual harassment isn't a crime at all; it's a civil wrong that exists only in the context of the workplace.
  - vvanders 9y ago
    It may be beneficial to each party but it sure as hell isn't what I want from my society. A large portion of these events have come from men with money and power. Letting them pay their way out of this just means they get to go on perpetrating the same crime on other people. That's not an acceptable outcome for sexual harassment.
  - greglindahl 9y ago
    "Blood money" (a family forgiving a murderer in exchange for money) is a mutually beneficial trade, but is illegal in almost all countries.
    - deleted 9y ago
      [deleted]
    - dominotw 9y ago
      Telling some one a sex joke is a not a crime, killing someone is a crime. Edit: Sexual harassment, as such, is not a crime under state or federal law in the U.S. Murder is a Crime. Makes no sense to compare it to murder. apples oranges.
      - greglindahl 9y ago
        This discussion is about more than just "telling some one a sex joke".
        dominotw 9y ago
        yea but you are comparing something thats considered crime by federal law to something that isn't. Commiting a crime is illegal, sure. I don't understand what you were implying then.
        greglindahl 9y ago
        This discussion is about allegations which range from rape down to "acting creepy." Some of these are crimes. Even if we aren't initially talking about a crime, I would find it unjust if a billionaire quietly paid off 100 victims of sexual harassment, and then committed an assault. "Who could have predicted this?!?!"
- s73ver_ 9y ago
  At the same time, having the victim's name plastered all over everywhere can't be good for them. Despite all the progress that's been made, we still live in a time where most victims would be blacklisted from the industry, despite nothing being their fault.
  - maroonblazer 9y ago
    I think the reticence of victims of sexual assault being identified has more to do with the taboos around sex that still exist, at least in this country. The cult-of-virginity and inequitable attitudes toward sex that come largely from the Abrahamic religions. I think we'll eventually outgrow that.
    - QAPereo 9y ago
      You would be just shocked at the “cult of virginity” in places as far from Abrahamic traditions as Japan.
- sverige 9y ago
  I would argue that the recent wave of "guilty until proven innocent" and "guilty when accused, and more guilty if accused by more people" is even worse for public policy. Due process does indeed exist for a good reason, one of which is to prevent a situation where mere accusations have the power to destroy lives. Does this mean I think any or all of the recent high-profile cases are innocent? Oh shit, wait, it doesn't matter what I think unless I'm on a jury or in a position to hire or fire the person who is accused. It's easy to feel smugly righteous about a lot of these cases, but the reality is that it does matter if innocent people are caught up in the hysteria. I'm not quite sure when the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty," but the long-term consequences of this are likely to play out in very unexpected and ugly ways that will affect most or all of us in areas that have nothing to do with sexual harassment.
  - greglindahl 9y ago
    Society has not abandoned innocent until proven guilty in court cases. That's where that standard applies.
    - jeffdavis 9y ago
      Courts do have stricter standards for admission of evidence and verdicts. But the basic innocent-by-default is a general principle that should apply pretty much everywhere. And there should be consistency and standards in media reporting of allegations, and for HR decisions.
      - geofft 9y ago
        The thing about innocent-by-default is that false accusations are also a serious crime with serious penalties (for good reason), and if you believe that the accused is affirmatively innocent, you have to believe that the accused is guilty. The reason that courts, specifically, do not have this paradox is that "innocent" simply means "we do not have the evidence to justify using the extraordinary punishment powers reserved to the government alone against this person". Yes, there's such a thing as getting a court to declare you affirmatively innocent, but usually they say "not guilty," which is an important philosophical distinction. So a court can very well decide that a person has not been proven guilty of their crime, and that their accuser has not been proven guilty of malice, either. But humans don't work like that. When we think "innocent," we don't think "I have insufficient data," we think "they didn't do it". It is arguably a flaw in human thinking, but it's a flaw we have to live with and work with. And a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court of public opinion isn't a great world, either.
- anon12345690 9y ago
  I bet youll change your mind if/when you get accused, especially if its false. Guess you should hope that never happens then right?
  - rectang 9y ago
    This knife cuts both ways: you might change your mind if you were subject to sexual abuse. "If a conservative is a liberal who's been mugged, a liberal is a conservative who's been arrested." -- Tom Wolfe
  - geofft 9y ago
    This makes no sense to me. Especially if it's false? If I'm correctly accused, I hope I get what I deserve! This feels like saying, "I bet you'll change your mind about manslaughter laws when if/when you accidentally run someone over with your car." No, I'm pretty sure I'll be preoccupied by feeling terrible for killing someone. And I understand that false accusations happen occasionally, and I am willing to take that risk because a world that insists on zero false positives has a ton of false negatives. It would be hypocritical for me to not accept the consequences if it happens to affect me - I am not advocating for others anything I could not accept for myself. But I can absolutely accept that if I am a visible leader of an organization, or a manager of people, or in some other role of trust, and I am accused of something I believe I didn't do, the best thing for me to do for the organization is to step aside. (It is not like I can guarantee that I will even live to see tomorrow, so anything that I care about, I should arrange so that my personal involvement is not critical.) But more than that, it's entirely possible (though I have zero reason to expect it to happen) that some behavior I thought was reasonable will be seen by the world as unreasonable. And if that happens, I am happy to accept the consequences. My goal is making the world a better place, not making myself powerful/comfortable at the expense of other people. If removing myself from positions of trust to prevent my behavior from hurting the world is the right thing for me to do, why should I shrink away from it?
    - anon12345690 9y ago
      except we designed the justice system so that it's better to let 10 guilty people go than let 1 innocent person suffer the rest of your comment just sounds ridiculous, hurting the world? im sure you realize not everyone else has the same attitude and arent going to throw away their livelihood because of a false accusation. that's not moral high ground, its just pathetic
- dominotw 9y ago
  > something as serious as sexual assault This article is about "sexual harassment" which isn't illegal according to federal law. You are conflating it with "sexual assault" which is a crime.
  - gpm 9y ago
    You're right, I wrote the wrong thing, they are substantially different things and shouldn't be confused. It changes absolutely nothing about what I intended to say, sexual harassment is serious, it still goes through the court system, due process still applies, preventing it is good for the public.
  - astura 9y ago
    https://www.eeoc.gov/laws/types/sexual_harassment.cfm https://www.eeoc.gov/laws/types/sexual_harassment.cfm >It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature... Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
    - deleted 9y ago
      [deleted]
- walshemj 9y ago
  Ah so you'd force some one to go to court - what happens when they kill themselves feel good about that would you ?
jeffdavis 9y ago
"An allegation of harassment, without further evidence, is not going to fare well in court." Then why should it fare well in other contexts?
- deleted 9y ago
  [deleted]
- taneq 9y ago
  I don't think parent poster is saying that it should. Instead, I think they're saying "without confidentiality clauses, high-profile targets are less likely to pay hush money to smooth over false accusations, leading to a reduction in false accusations." (I initially read it the same way you did.)
ggg9990 9y ago
Less money for victims is a GOOD thing. One of Bill O'Reilly's victims got $32 million for a confidential settlement, which teed up the next victim as a near-certainty.
- walshemj 9y ago
  Why do you think this will lead to less money? And the OReily case didn't go through employer forced arbitration
walshemj 9y ago
it wont as I read it, the bill was only to stop enforced arbitration

gpm 9y ago

Accusers getting more money isn't good for the public. Incentive to settle without a fair trial in something as serious as sexual assault is not only not good for the public, it's bad for the public. Due process exists for a damn good reason. Preventing sexual assaults is good for the public, publicizing cases of sexual assaults may well have a tendency to do that. Based on your arguments above, I would come to the conclusion that NDAs on this should be banned. But I haven't thought enough about the topic to conclude that there aren't successful counter arguments.

marcoperaza 9y ago
It's a mutually beneficial trade. The accuser gets paid, without having to go through the rigors of a trial, where the defense counsel will impeach their character and try to convince the world that they are scheming liars or worse. The accused gets silence, instead of having their name run through the press and assumed guilty by the angry mob. Also, where did sexual assault come into this? Sexual assault is a crime. Sexual harassment isn't a crime at all; it's a civil wrong that exists only in the context of the workplace.
- vvanders 9y ago
  It may be beneficial to each party but it sure as hell isn't what I want from my society. A large portion of these events have come from men with money and power. Letting them pay their way out of this just means they get to go on perpetrating the same crime on other people. That's not an acceptable outcome for sexual harassment.
- greglindahl 9y ago
  "Blood money" (a family forgiving a murderer in exchange for money) is a mutually beneficial trade, but is illegal in almost all countries.
  - deleted 9y ago
    [deleted]
  - dominotw 9y ago
    Telling some one a sex joke is a not a crime, killing someone is a crime. Edit: Sexual harassment, as such, is not a crime under state or federal law in the U.S. Murder is a Crime. Makes no sense to compare it to murder. apples oranges.
    - greglindahl 9y ago
      This discussion is about more than just "telling some one a sex joke".
      - dominotw 9y ago
        yea but you are comparing something thats considered crime by federal law to something that isn't. Commiting a crime is illegal, sure. I don't understand what you were implying then.
        greglindahl 9y ago
        This discussion is about allegations which range from rape down to "acting creepy." Some of these are crimes. Even if we aren't initially talking about a crime, I would find it unjust if a billionaire quietly paid off 100 victims of sexual harassment, and then committed an assault. "Who could have predicted this?!?!"
s73ver_ 9y ago
At the same time, having the victim's name plastered all over everywhere can't be good for them. Despite all the progress that's been made, we still live in a time where most victims would be blacklisted from the industry, despite nothing being their fault.
- maroonblazer 9y ago
  I think the reticence of victims of sexual assault being identified has more to do with the taboos around sex that still exist, at least in this country. The cult-of-virginity and inequitable attitudes toward sex that come largely from the Abrahamic religions. I think we'll eventually outgrow that.
  - QAPereo 9y ago
    You would be just shocked at the “cult of virginity” in places as far from Abrahamic traditions as Japan.
sverige 9y ago
I would argue that the recent wave of "guilty until proven innocent" and "guilty when accused, and more guilty if accused by more people" is even worse for public policy. Due process does indeed exist for a good reason, one of which is to prevent a situation where mere accusations have the power to destroy lives. Does this mean I think any or all of the recent high-profile cases are innocent? Oh shit, wait, it doesn't matter what I think unless I'm on a jury or in a position to hire or fire the person who is accused. It's easy to feel smugly righteous about a lot of these cases, but the reality is that it does matter if innocent people are caught up in the hysteria. I'm not quite sure when the media collectively decided that it was a good idea to promote abandoning the principle of "innocent until proven guilty," but the long-term consequences of this are likely to play out in very unexpected and ugly ways that will affect most or all of us in areas that have nothing to do with sexual harassment.
- greglindahl 9y ago
  Society has not abandoned innocent until proven guilty in court cases. That's where that standard applies.
  - jeffdavis 9y ago
    Courts do have stricter standards for admission of evidence and verdicts. But the basic innocent-by-default is a general principle that should apply pretty much everywhere. And there should be consistency and standards in media reporting of allegations, and for HR decisions.
    - geofft 9y ago
      The thing about innocent-by-default is that false accusations are also a serious crime with serious penalties (for good reason), and if you believe that the accused is affirmatively innocent, you have to believe that the accused is guilty. The reason that courts, specifically, do not have this paradox is that "innocent" simply means "we do not have the evidence to justify using the extraordinary punishment powers reserved to the government alone against this person". Yes, there's such a thing as getting a court to declare you affirmatively innocent, but usually they say "not guilty," which is an important philosophical distinction. So a court can very well decide that a person has not been proven guilty of their crime, and that their accuser has not been proven guilty of malice, either. But humans don't work like that. When we think "innocent," we don't think "I have insufficient data," we think "they didn't do it". It is arguably a flaw in human thinking, but it's a flaw we have to live with and work with. And a world in which all who accuse people of sexual harassment are effectively guilty-until-proven-innocent in the court of public opinion isn't a great world, either.
anon12345690 9y ago
I bet youll change your mind if/when you get accused, especially if its false. Guess you should hope that never happens then right?
- rectang 9y ago
  This knife cuts both ways: you might change your mind if you were subject to sexual abuse. "If a conservative is a liberal who's been mugged, a liberal is a conservative who's been arrested." -- Tom Wolfe
- geofft 9y ago
  This makes no sense to me. Especially if it's false? If I'm correctly accused, I hope I get what I deserve! This feels like saying, "I bet you'll change your mind about manslaughter laws when if/when you accidentally run someone over with your car." No, I'm pretty sure I'll be preoccupied by feeling terrible for killing someone. And I understand that false accusations happen occasionally, and I am willing to take that risk because a world that insists on zero false positives has a ton of false negatives. It would be hypocritical for me to not accept the consequences if it happens to affect me - I am not advocating for others anything I could not accept for myself. But I can absolutely accept that if I am a visible leader of an organization, or a manager of people, or in some other role of trust, and I am accused of something I believe I didn't do, the best thing for me to do for the organization is to step aside. (It is not like I can guarantee that I will even live to see tomorrow, so anything that I care about, I should arrange so that my personal involvement is not critical.) But more than that, it's entirely possible (though I have zero reason to expect it to happen) that some behavior I thought was reasonable will be seen by the world as unreasonable. And if that happens, I am happy to accept the consequences. My goal is making the world a better place, not making myself powerful/comfortable at the expense of other people. If removing myself from positions of trust to prevent my behavior from hurting the world is the right thing for me to do, why should I shrink away from it?
  - anon12345690 9y ago
    except we designed the justice system so that it's better to let 10 guilty people go than let 1 innocent person suffer the rest of your comment just sounds ridiculous, hurting the world? im sure you realize not everyone else has the same attitude and arent going to throw away their livelihood because of a false accusation. that's not moral high ground, its just pathetic
dominotw 9y ago
> something as serious as sexual assault This article is about "sexual harassment" which isn't illegal according to federal law. You are conflating it with "sexual assault" which is a crime.
- gpm 9y ago
  You're right, I wrote the wrong thing, they are substantially different things and shouldn't be confused. It changes absolutely nothing about what I intended to say, sexual harassment is serious, it still goes through the court system, due process still applies, preventing it is good for the public.
- astura 9y ago
  https://www.eeoc.gov/laws/types/sexual_harassment.cfm https://www.eeoc.gov/laws/types/sexual_harassment.cfm >It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature... Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
  - deleted 9y ago
    [deleted]
walshemj 9y ago
Ah so you'd force some one to go to court - what happens when they kill themselves feel good about that would you ?

jeffdavis 9y ago

"An allegation of harassment, without further evidence, is not going to fare well in court." Then why should it fare well in other contexts?

deleted 9y ago
[deleted]
taneq 9y ago
I don't think parent poster is saying that it should. Instead, I think they're saying "without confidentiality clauses, high-profile targets are less likely to pay hush money to smooth over false accusations, leading to a reduction in false accusations." (I initially read it the same way you did.)

ggg9990 9y ago

Less money for victims is a GOOD thing. One of Bill O'Reilly's victims got $32 million for a confidential settlement, which teed up the next victim as a near-certainty.

walshemj 9y ago
Why do you think this will lead to less money? And the OReily case didn't go through employer forced arbitration

walshemj 9y ago

it wont as I read it, the bill was only to stop enforced arbitration