Change Is Occurring in How Sexual Misconduct is Handled
In California, the amount, speed, and frequency of sexual harassment settlements has increased exponentially since the Harvey Weinstein case broke and birthed the #MeToo movement.
Once the movement began, the “code of silence” that previously existed – particularly in Hollywood, where the fear of being blackballed scared women into silence – was demolished. After Weinstein, we saw a wave of accusations against other rich and powerful figures in the entertainment industry, including Bill Cosby, Matt Lauer, Kevin Spacey, and Les Moonves.
In the past, when a woman accused a high-level executive or celebrity of sexual assault or harassment, the standard “playbook” was to sling mud, accuse the accuser of lying or consenting only to have buyer’s remorse and level a false accusation later. But post-Weinstein, the tide turned against the accused.
Whereas people like Cosby had previously fended off such accusations with unlimited resources and teams of lawyers tasked with making the victim regret having come forward, now other victims were coming forward to corroborate the accuser’s story. While it may be a simple matter to show a jury friendly and even fawning text messages and emails send by the accuser after an alleged assault to impeach her credibility, as happened with Cosby and Weinstein, their high-price defense lawyers now face the impossible task of arguing that the dozens of other women who are now coming forward are all lying or misrepresenting “consensual” relationships. This evidence of numerous other victims telling similar stories, which, ironically, has been known in legal circles for decades as “me too” evidence, is too compelling to ignore.
Moreover, even if employers like the Weinstein Company or NBC might conclude that they can persuade a conservative judge to exclude such “me too” evidence (a herculean task in California, thanks to a body of caselaw that began with Johnson v. United Cerebral Palsy/Spastic Children's Foundation of Los Angeles and Ventura Counties (2009) 173 Cal.App.4th 740, 750-60; Pantoja v. Anton, 198 Cal. App. 4th 87, 110 (2011) and McCoy v. Pacific Maritime Association (2013) 216 Cal.App.4th 283, 297), companies have almost universally concluded that the negative publicity rained down from social media and media opinion leaders is far more costly than erring on the side of believing the accuser and cutting ties with the alleged harasser.
Thus, whereas prior to 2016 any company that used the phrase “he said; she said” in the context of a sexual harassment accusation was employing it in a pejorative sense and as a basis for concluding the allegation was unsubstantiated, the reverse has been true in the post-Weinstein ERA. Now, we have seen most companies err on the side of believing women and firing men, regardless of their power or position, even in the absence of witnesses. And, in such cases the employer usually pays vast sums of money to the accuser and requests confidentiality. (In California, employers may still insist on confidentiality for settlements paid prior to the filing of a formal administrative charge with EEOC or DFEH or a civil lawsuit).
Why the sudden change in how “he-said-she-said” cases are treated? Because corporations large and small fear that once such a case is publicized, it will morph into a #MeToo case, where multiple other victims surface, making it easier for the accuser to prove her claim in court, and making the company look complicit in a coverup for its initial finding that the claim lacked proof. No company wants to be on record finding a sexual harassment claim against a high level executive lacked merit, or that the accuser lacked credibility, only to have an avalanche of women later come forward telling the same story about the perpetrator.
The Average Sexual Harassment/Assault Settlement Has Increased Dramatically
For all of these reasons, we at the Feldman Browne Olivares firm have seen the settlement value of sexual harassment claims skyrocket in recent years. Just since the Harvey Weinstein scandal broke in 2017, we have recovered in excess of $110,000,000 in sexual harassment settlements alone. This figure includes numerous single plaintiff settlements of $1,000,000 or more, including individual settlements of $34,500,000, $20,000,000, $8,000,000, $5,000,000, $5,000,000, $4,000,000, $3,700,000, $3,500,000, $3,000,000. Of course, each case is different, and its value based on its own unique set of facts and circumstances. But, while comparing different cases to determine settlement value is difficult, we believe it is safe to assume that any sexual harassment claim made today will settle for a higher amount than the same claim would have netted prior to the advent of the #MeToo movement in the Fall of 2017.
Importantly, even if your claim is old, it may still be valuable. The statute of limitations for sexual assault claims, which include any unwelcome sexual touching, is now 10 years or 3 years from the date you discover an injury caused by the conduct. As a practical matter, this means that even if you were sexually assaulted 20 years ago, if news stories in recent years, or some other event triggered a delayed onset psychological condition within the last three years, you may still have a claim. So, it is imperative to consult with a law firm like the Los Angeles, California law firm of Feldman Browne Olivares ASAP to determine whether you may still have a claim worth pursuing.
For legal support, contact us online or call (310) 984-1415.