sexual harassment confidentiality agreement

Bill O’Reilly sexual harassment settlements to be revealed

Bill O’Reilly was once at the top of the food chain at Fox News until the focus on President Trump’s sexual harassment crashed into allegations of O’Reilly’s own harassment and the cable network cut ties. In the course of litigating O’Reilly’s current sexual harassment allegations it has become public that he settled several prior sexual harassment claims with other female co-workers although until now the terms of those settlement agreements remained concealed beneath confidentiality provisions. The terms of these settlement agreements are unusual and potentially unethical to the employment lawyers representing the plaintiffs.

One such settlement agreement resolved a harassment claim by Andrea Mackris, a former Fox News producer, who settled a 2004 lawsuit. Among the terms of the settlement agreement entered into the court record in the current lawsuit are two unusual provisions:

  1. Mackris must deny the validity of the allegations and insist they are false, even under oath; and
  2. Her attorney would represent O’Reilly and Fox News regarding sexual harassment allegations.

Deny, deny, deny the sexual harassment allegations

It’s not unusual for employment lawyers to agree to resolve sexual harassment and other employment discrimination lawsuits with agreements that contain various confidentiality provisions. Often employers require plaintiffs to not only maintain confidentiality of the underlying allegations but also to alert the employer if a reason ever arises in which the employee must discuss the allegations or settlement agreement in a legal proceeding or investigation. An employee might be called to participate in an EEOC investigation of another allegation of discrimination or subpoenaed by an attorney to testify in a lawsuit about his or her experiences with the company. In these situations, attorneys for the employer want the opportunity to try to prevent the plaintiff from providing testimony.

However, it is unusual for an agreement to require Mackris to give false testimony under oath or in any other situation which might expose the plaintiff to criminal or civil liability. There are several problems that could exist with this settlement agreement. The agreement may be void under its state law because it is an agreement to commit a future crime. If Mackris gives false testimony in an EEOC or judicial proceeding that exposes her to liability for perjury then it might also expose O’Reilly or Fox News as conspirators in the perjury.

The liability might not fall solely on the parties. The employment lawyers on both sides may share liability as co-conspirators and certainly there could be ethical issues raised by advising their respective clients to enter into this agreement. Mackris’s former attorney may be more at risk because he likely advised his client to accept the terms of the settlement agreement and at least implicitly advised her to commit future perjury. Yikes.

Switch hitting lawyers

The settlement agreement also strangely requires Mackris’s then lawyer to become O’Reilly’s and Fox News’s lawyer to advise them on sexual harassment matters. This is one wacky settlement term not just for a sexual harassment lawsuit but for any lawsuit. It’s clear why O’Reilly and Fox News would want this provision but it’s less clear how Mackris’s lawyer thought this would be a good idea. The settlement agreement read into the court record states:

“As an inducement to O’Reilly and Fox News to enter into this Agreement, and as a material condition thereof, the Morelli Firm (i) agrees to provide legal advice to O’Reilly regarding sexual harassment matters, and (ii) warrants and represents to O’Reilly and Fox News that it will not, and will not knowingly permit any of its employees, agents or representatives to represent, assist or cooperate with any other parties or attorneys in any action against O’Reilly, Fox News or the Companies arising out of actual or alleged sexual harassment issues, nor will they encourage any other parties or attorneys to commence any such action or proceeding.”

Here’s why I believe the defendants wanted this provision:

  • If Mackris’s lawyer represents the defendants in related matters then his firm cannot represent any other plaintiff against them;
  • Which means his law firm cannot use prior knowledge of the settlement agreements or past plaintiffs in future suits against defendants;
  • And cannot provide that information to any other prospective plaintiff or investigator in subsequent proceedings; and
  • Cannot advise Mackris about whether the settlement agreement’s seeming requirement to perjure herself is an enforceable provision.

O’Reilly or Fox News likely worried that Mackris’s lawyer might try to find other co-workers with similar allegations and pursue multiple other lawsuits knowing some of the facts behind the case and how much the defendants would be willing to settle. This is not an unreasonable fear, lawyers do this all the time.

However, while the fear may be reasonable, the way they chose to deal with the problem is not as reasonable. It’s not entirely clear from the court record or the settlement agreement why the plaintiff’s lawyer thought this term was a good idea but it raises eyebrows to see lawyers agree to become an opposing party’s lawyer before the current lawsuit is resolved. The lawyers for the plaintiffs in the current lawsuit described this as switching sides in the middle of the case which Morelli disagrees as an inaccurate description of what happened. At a minimum it raises serious ethical questions about whether a lawyer can even agree to represent an adverse party before representation of the current party concludes.

What to do if you are sexually harassed at work

Unfortunately sexual harassment is all too common at work in Colorado. If you believe you are the victim of sexual harassment at work then you should find an employment lawyer right away to discuss your situation. Sexual harassment claims generally require you to take specific acts with your employer and then with government agencies before you can proceed with a lawsuit. Your employment lawyer can advise you how to maneuver these steps to hopefully resolve the conflict or pursue remedies for the harm caused by the harassment. Sexual harassment lawsuits are rarely simple cases so hire a Colorado employment lawyer to give yourself the best chance for justice.

Colorado Sexual Harassment Laws

Colorado legislators hit with sexual harassment claims by staff and interns

This week Colorado state representative Steve Lebsock met his third sexual harassment allegation by workers for the legislature. He is among the four Colorado legislators currently facing sexual harassment allegations by legislative staff. As the #metoo movement has given employees the space to bring forward sexual harassment allegations against people in position of power, we are likely to see a continuing flow of allegations against politicians and their circles of power. As these public cases of workplace harassment continue to appear they will continue to create space for employees of private business to come forward with allegations of sex discrimination in the workplace and raise both internal and external complaints. Colorado employees who believe they suffered sexual harassment should contact Colorado employment lawyers right away.

Colorado workplace harassment laws

Sexual harassment, like other forms of workplace harassment, is unlawful under federal and Colorado employment law. Title VII of the Civil Rights Act of 1964 prohibits sex discrimination at work, including harassment. The Colorado Anti-Discrimination Act similarly prohibits sex discrimination in the workplace. (Colorado Revised Statutes C.R.S. 24-34-401 et seq.)

Sexual harassment occurs when an employer creates an environment involving severe or pervasive unwelcome and offensive conduct. People often consider sexual harassment to include sexual contact or advances; however, sexual harassment can occur by making sexual or romantic comments without any touching, requests, or offers.

Colorado employees may suffer two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when an employer requires an employee to submit to a sexual or romantic request in exchange for work condition. That might include gaining a promotion or raise or avoiding a demotion or termination. A hostile work environment occurs when the workplace is made toxic by unwelcome and offensive sexual content, such as sexual advances, touching, comments, gestures and other sexual content in the workplace.

Sexual harassment complaints in the workplace

Employees suffering sexual harassment in the workplace may raise internal or external complaints. Which path an employee takes and when the employee complains may be extremely important to a later sexual harassment lawsuit in Colorado.

Most Colorado employers have an internal process for filing discrimination complaints to human resources or an open door policy that makes any supervisor a recipient of a complaint. Employees may feel uncomfortable with these complaints because it requires publicizing an uncomfortable experience to parts of the company that may be more aligned with the perpetrator than the victim. However, due to Supreme Court cases in the late nineties, it is sometimes necessary to raise an internal complaint.

Employees may also file external complaints with federal and Colorado anti-discrimination agencies. These complaints may go to the EEOC Colorado office in Denver or the Colorado Civil Rights Division. (Complaints will cross-file between the agencies in most cases.) The EEOC and CCRD can investigate complaints of sexual harassment in Colorado and help employees resolve workplace harassment.

Workplace harassment lawyers in Colorado

Employees suffering sexual harassment in the workplace should contact Colorado employment lawyers immediately. There are several reasons why employees should contact an employment attorney right away. These include:

Your employment lawyer can advise you how to deal with a bad situation before it gets worse

You may be in a position where a hostile work environment is emerging but has not become so severe or pervasive that it is time to move towards a lawsuit. Your Colorado employment discrimination lawyer can advise you on how to handle the situation to try to deescalate the situation and when it is the right time to take action. Scheduling a consultation with an employment law attorney early in the process gives you an opportunity for professional help at every step of the process.

Internal discrimination complaints may be necessary

Although it is often difficult to expose a coworker or manager’s harassment, a legal claim against the employer may require an internal complaint. Your employment lawyer can review whether the complaint is necessary and if so, make sure you make the request to the right part of the company.

Complaints to the EEOC and CCRD must occur within a specific timeframe

A major problem with harassment and other discrimination lawsuits arises when employees fail to file timely complaints with the EEOC or CCRD. Failure to file a timely complaint bars a later lawsuit on the same disgusting conduct.

EEOC and CCRD complaints must include the right details about the harassment

Colorado employment lawyers also find problems in harassment lawsuits when the EEOC and CCRD complaints lack the necessary details. These complaints form the beginning of the litigation process. Missing information may impair a later lawsuit even if the employee timely files a complaint.

Employment lawyers can build your case through the entire process

Hiring a Denver employment lawyer late in the process means the lawyer must deal with the situation as it is rather than working with you to build a strong position. The employer or its attorneys may have taken steps to weaken your case. Often employees enter into mediation or informal settlement discussions without knowledge of the real value of the harm suffered by the harassment. Your Colorado employment discrimination lawyer can help you understand and pursue what you deserve.