WILLIAMS AND LEBSOCK
getting large payouts, the plaintiff s were the ones who were forced
to leave their companies, and many suff ered career interruptions.
Quiet settlements are now becoming harder to justify. The uncere-
monious fi rings and forced resignations of famous men demonstrate
that companies are moving away from that strategy. Settlements
will likely continue in some circumstances, such as a fi rst off ense
involving mild or ambiguous behavior or a situation that is consen-
sual but violates company standards. But long strings of settlements
in egregious cases will increasingly be seen as a breach of the direc-
tors’ duty to the company. Boards of directors have never tolerated
fi nancial fraud and violations of the Foreign Corrupt Practices Act,
and they are likely to adopt the same standards for harassment—
fi ring without severance pay.
It’s important to recognize that most of the fi rings have occurred
at companies with sophisticated legal and HR departments, on the
advice of counsel and with the involvement of senior management or
the board or both. We should not assume that they are disclosing all
the evidence they have. Companies have a strong motive not to release
such evidence, lest the former employee use it as ammunition in a def-
amation or wrongful discharge suit. That’s what companies do when
they sack someone for cause, and that’s what they are doing here.
Some worry that people will be fi red too quickly and without
due process. One point that’s often overlooked: Due process isn’t
required of private employers, only public ones. What people are
trying to insist on, quite properly, are fair procedures that uncover
the truth. Companies should follow the same procedures they use
when an employee has been accused of any type of serious miscon-
duct. Typically, the employee is placed on leave while an investiga-
tion is performed. In most cases, although not all, that’s what has
been happening with sexual harassment cases.
Credibility assessments are, of course, important. Women are
human beings, and sometimes human beings— male and female—
lie. That’s why we need to apply the standard methods we always
use to assess credibility. Those methods are fl awed, but they are
all we have; if they will do for every other context, they will do for
sexual harassment, too.