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Sorry, not sorry? The (possible) legal underpinnings of Shaun White’s apology.

February 15, 2018

After Olympian Shaun White won his third gold medal for America in the men's halfpipe in PyeongChang, amidst a flurry of questions from reporters came seemingly unanticipated (at least, by White) questions about a lawsuit filed against him by his former bandmate Lena Zawaideh. The lawsuit, which contained claims for breach of contract and sexual harassment, levelled a series of allegations against the celebrity snowboarder for various instances of lewd and inappropriate conduct, and sought compensatory and punitive damages for those alleged actions. Reporters interviewing White following his victory asked about the suit and whether it would tarnish his reputation.

"I'm here to talk about the Olympics, not gossip and stuff," replied White. "I don't think so."

In a follow-up interview with the Today show later that same day, White appeared to walk back his earlier remark.

"I'm truly sorry that I chose the word gossip. It was a poor choice of words to describe such a sensitive subject in the world today," he said.

What prompted White’s about-face? (It should be noted that it wasn’t a complete retraction –White expressed regret over his word choice, not necessarily the sentiment behind it.) It could be that upon further reflection – with or without prompting from his publicist – White determined that his statement was tone-deaf, hurtful, and out of touch with the current climate, especially in light of the #metoo movement. And perhaps this was the catalyst for his revision.

However, knowing that White and Zawaideh are parties to a legally-binding settlement of her claims, it seems just as likely that White – or his attorney – realized that his “poor choice of words” could land him in legal hot water. While it is typical in such cases to have a confidentiality clause preventing the parties from discussing the terms (and sometimes, even the existence of) a monetary settlement agreement, such documents also frequently contain language preventing the parties from disparaging one another – essentially forbidding them, under the threat of breaching the agreement, from speaking badly about or casting any sort of aspersions on each other following the resolution of claims. White clearly knew enough not to discuss the settlement in detail, but might he have run afoul of a non-disparagement clause – if indeed there is one – by characterizing Zawaideh’s claims as “gossip”? In essence, his dismissive language cast the allegations in the lawsuit as untruths, which could certainly be argued to disparage Zawaideh (by insinuating, for example, that she lied and brought false claims against him). If so, then his subsequent revision/clarification of his comment was prompt and necessary to correct what might otherwise be a breach of the settlement agreement – because amongst other provisions, it is likely that damages are specifically provided for in the event of such a breach, and given White’s status and income, that damage amount is probably not inconsequential.

Speculative though the above analysis is, Shaun White’s recent gaffe highlights the importance of honoring settlement agreements to the letter – it is easy enough, especially with the passage of time, to lose focus on some of what may feel like the minutiae of such a document (typically, parties focus most on the money exchanged, the claims released and, where applicable, confidentiality). But agreements not to disparage, in particular, are subject to broad application and are often easy to breach, even if only by a technicality. I am reminded of the old adage, perhaps never truer than in the case of a non-disparagement clause: “If you can’t say something nice, don’t say anything at all.”

 

The Bottom Line Cost of Confidential Sexual Harassment Settlements Just Went Up

December 20, 2017

Regardless of where one stands on the political spectrum, most can agree that today’s passage and soon-to-follow signing into law of the comprehensive tax bill will surely have many long-lasting implications for the nation’s corporate and individual tax-payers.    In an interesting, and perhaps unexpected note, the Bill also includes a provision which seems to have come in direct reaction to the #metoo movement and the many high-profile instances of alleged sexual harassment and abuse it has given voice to.  When the bill becomes law, corporations will no longer be able to take a deduction for the cost of settling sexual harassment/abuse claims if the settlement carries with it a confidentiality/nondisclosure requirement.   Previously, settling employers were able to deduct confidential settlements as “ordinary and necessary expenses,” however Section 26 USC 162 of the tax code will be amended to disallow that practice.  Going forward, in order for sexual harassment and abuse settlements to be deductible by the paying business, there can be no confidentiality requirements.  Traditionally, employers have insisted that such settlements be confidential, but they now face a monetary disincentive for continuing to do so.  Obviously, it remains to be seen whether this change will alter employer approaches to settlement of sexual harassment and abuse claims, but an insistence on confidentiality now comes with an extra price.  

Sexual Harassment & the Evolution of “#MeToo”

November 13, 2017

Sexual harassment in the workplace is prohibited by the 1964 federal law that prohibits adverse pay, promotion and other forms of gender-based treatment. An employer, supervisor or co-worker cannot use the workplace to hold a co-worker hostage to unwanted sexual comments or treatment.

Since 1964, proving inappropriate sexual denied conduct has evolved from ‘he said-she said’ to potentially include proof such as text messages, emails, social media and other electronically preserved records that aren’t (totally) deleted when the ‘delete’ button is hit.

Plus, since the 2008 U.S Supreme Court case of Sprint v. Mendelsohn, courts have recognized pattern or propensity evidence - other examples of the harasser’s actions or, in other discrimination contexts, other examples of the same type of race, gender, age, religious discrimination - as proof of workplace culture, employer knowledge, etc. useful to a jury’s assessment of the harassment claim. 

Shortly after the Sprint case was decided, management lawyers began to describe this evidence in a pejorative manner, calling it “me too” evidence - suggesting that it was opportunistic, as if others simply jumped on the bandwagon.  Well, with the Weinstein and other revelations, “me too” has taken on a brand new gloss.

“#MeToo” has unleashed a torrent of what employee-side lawyers have known for a long time - that many, many more women had suffered inappropriate workplace conduct and that sexual predators did not go away, they just often got away with it because of the process required to prove it.  The tide may have turned. Finding strength in numbers, more and more women are sharing their experiences. 

Deciding whether and when to assert a claim is a personal decision.   There are valid concerns - how your employer will react, what job protections you have, how co-workers will react, will this jeopardize all I’ve worked for?  There are legal answers and there are practical answers - but they are questions that deserve to be asked.

And FINALLY, when a company lawyer derides “me-too” corroboration of a harassment claim, the jury will now hear a different message! 

Rebecca Royals Quoted in Article on Harassment in Restaurant Industry

November 03, 2017


Partner Rebecca Royals was recently quoted in a Richmond Magazine article "An Industry Like No Other" about sexual harrasment in the resturant industry. The article can be accessed here


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