Advertisement

Special Report: How courts help companies keep sexual misconduct under cover

From Reuters - January 10, 2018

NEW YORK (Reuters) - Cristina Chen-Oster, a senior salesperson in Goldman Sachss convertible bonds department, was a few years out of MIT when a male colleague pinned her against a wall, kissed her, groped her and tried to engage in a sexual act, she said in a lawsuit in federal court. After reporting the incident to her boss, the lawsuit alleged, she missed out on pay and promotions while her accused attacker steadily rose through the ranks.

Cathy Sellars, a 59-year-old mother of two adult children, was training to become a truck driver for freight hauler CRST when she complained to her bosses about repeated sexual harassment by male colleagues, according to a class action lawsuit against the company. Her complaints ignored, she says in court records, she eventually found herself in a truck cab with a male driver who pulled a knife on her after she rebuffed his sexual advances. He then refused to allow her to exit the truck during a trip through the southwest and held her for several hours, she said.

And Sebastian Kelly, a gay driver for an ambulance company in Alabama, said in a lawsuit that he worked in a sexually charged atmosphere, where two male co-workers routinely exposed their genitalia.

News headlines of late have focused on sexual harassment accusations against movie mogul Harvey Weinstein, former Today show anchor Matt Lauer, former U.S. Senator Al Franken and other media figures, entertainers and politicians. In each case, the accusers say they waited years to confront the men who accosted them, most of them too ashamed or fearful to complain publicly or persuaded to keep quiet by tactics meant to suppress the truth.

But these three plaintiffs, and many like them, chose to confront their alleged abusers and hold the companies they work for accountable in public court. Rather than opening the incidents to full public scrutiny, however, judges let companies push the legal boundaries of what should be considered confidential and to keep details of abusive behavior secret.

A Reuters review of federal court cases filed between 2006 and 2016 revealed hundreds containing sexual harassment allegations where companies used common civil litigation tactics to keep potentially damning information under wraps. Plaintiffs in some cases say companies sought to conceal internal documents that reveal similar harassment claims, as well as corporate policies that favored abusers over victims.

In one case, plaintiff lawyers collected secret evidence about alleged criminal behavior, including details of a pharmaceutical saleswoman who alleged a doctor sexually assaulted her at a work-related event. Her supervisor admitted to giving a sheriffs detective false information about the allegations, court records show.

THE COST OF SECRECY

The true number of such cases is likely much greater than the hundreds identified by Reuters. Federal courts categorize sexual harassment within a larger group of gender discrimination claims, which makes a full accounting difficult. In addition, many sexual harassment cases are filed in state courts. Reuters focused its review on the federal courts because records are more accessible and consistent.

As a result of the sealed documents, cases that could shine light on specific abusers, or on toxic corporate cultures, do the opposite: They enable the very secrecy and corporate complicity that allow sexual harassment to persist in the workplace.

Shira Scheindlin, a former Manhattan federal judge, said judges should make public human-resources complaints that result in employee discipline.

Otherwise, you get the serial abuser just doing it at the next job, said Scheindlin, who currently heads the American Bar Associations federal courts subcommittee and whose private practice includes advising companies on handling sexual harassment complaints. If that record had been available, there would have been no next job.

U.S. District Judge Charles Breyer said courts are going too far in routinely sealing such cases. Documents filed in federal court are presumed to be public, he said, so people can understand how the judiciary works. Companies should not be allowed to cloak evidence just because it is damaging, said the judge, based in San Francisco. That goes not only for sexual harassment but also for broader corporate governance issues.

Its hard to see why their private interests to avoid embarrassment trumps the publics right to have access to litigation, Breyer said.

Companies say they have good reason to seek broad protective orders. They frequently argue that their internal documents contain unproven allegations that shouldnt be public, or sensitive business information that could aid a competitor. Plaintiff attorneys say they often agree to protective orders and motions to seal information from public disclosure because fighting over public access can increase the length and cost of a lawsuit.

Many judges, meanwhile, are reluctant to enforce transparency when neither side has requested it, according to several current and former federal judges.

I dont think any judge is presumptively hostile to the idea of disclosure, Breyer said. We may be presumptively hostile to doing more work. Im speaking for myself.

Most civil cases settle before they can be publicly aired before a jury. That means the pre-trial secrecy allows companies to permanently conceal information about their sexual harassment policies and how they respond to specific complaints of abuse.

A broad protective order in the ongoing lawsuit by Chen-Oster and three other women against Goldman has allowed the Wall Street giant to keep hundreds of documents under wraps for three years.

Asked about the secrecy, a Goldman spokesperson told Reuters the firm keeps details private because it promises employees confidentiality when they report concerns. The spokesperson would not discuss the specific allegations raised by Chen-Oster and the other plaintiffs.

In court documents, the company acknowledges that Chen-Oster told her boss about the contact with her co-worker and that the supervisor contacted Goldmans human resources department about it. Chen-Oster, the company says in court filings, did not want to pursue a human resources complaint.

The protective order permitted lawyers on either side to mark any document exchanged in discovery as confidential, thus barring anyone from disclosing it outside the case. Such orders have become standard to ensure secrecy during the pre-trial evidence discovery phase in U.S. civil litigation.

There are no nationwide standards on what information should be sealed when discovery documents are later filed in court. Several federal appeals courts recognize that trade secrets, sensitive financial data, or personal information like Social Security Numbers can remain secret. When it comes to allegations of misconduct, some case law allows information that would intrude on an individuals privacy to be kept secret. But it is left to judges to decide if someones privacy outweighs the publics interest in disclosure.

Initially, Chen-Osters lawyers agreed to the protective order, but later, when they sought to broaden the case, they took the rare step of arguing that many documents filed in court should be made public.

Adam Klein, one of her lawyers, said plaintiff attorneys usually agree to protective orders to gain access to company documents in the first place.

Its balancing the interest of the client to get information with the publics right to know, Klein said. In Chen-Osters case, Klein said, they later pushed to unseal documents in part so that more women working at Goldman who could join the lawsuit would know the details.

The lawyers asked then-U.S. Magistrate Judge James Francis IV in Manhattan to certify the lawsuit as a class action to address pay and promotions lost to gender discrimination at Goldman. To support their request, they filed, under seal, nearly 300 internal Goldman documents the company had given them during discovery. Some of those documents, the lawyers alleged, showed that Goldman rewarded men who engaged in sexual misconduct. Because Goldman had asserted confidentiality during discovery, Chen-Osters lawyers had to file those documents in secret.

The plaintiffs also secretly filed a chart that logged gender discrimination complaints Goldman female employees made to the U.S. Equal Employment Opportunity Commission.

MYSTERY RULING

The plaintiffs first request in 2014 to unseal is itself not public, nor is Goldmans response. Francis sided with Goldmanthough his reasoning is unknown because he also sealed the ruling from disclosure on the public court docket.

In a subsequent filing, Chen-Osters lawyers argued that details about Goldman HR investigations should be made public, at least without revealing employee names, because they did not contain the type of trade secrets that legal precedent allows companies to keep confidential.

In response, Goldman attorneys argued the documents should remain secret, arguing many contained hearsay and violated the privacy of people who arent parties to the suit. The material had been selectively culled from Goldmans internal personnel files to sensationalize this proceeding, Goldmans lawyers said.

U.S. District Judge Analisa Torres in Manhattan reaffirmed Franciss ruling in 2017, saying the sealed materials include sensitive content about identifiable non-parties. Because of that, Torres ruled, the plaintiffs request to make the material public should wait until after a judge decides whether to let the case proceed as a class action.

That legal question has now been pending for more than three years.

Torres declined to comment. Francis, who recently left the bench, also declined to comment on the Goldman case. But in general, he said, judges often wait to wade into secrecy issues until after they know what evidence will be important in their rulings. That way they have a roadmap to decide which secret court filings are most relevant to the public, he said.

Making a decision later with more information may be better, Francis said. But later may be much later, and thats problematic.

Goldman says in court filings that it takes harassment seriously. Out of 12 human-resources cases highlighted by Chen-Osters lawyers, Goldman said it had fired five subjects of those complaints and disciplined five. The identities of those employees, however, are not public, leaving other companies unaware of the abusers histories.

Chen-Oster and one other plaintiff declined to talk for this article, and the others did not respond to Reuters efforts to reach them.

IDENTITY BLACKOUT

In some cases, companies have persuaded judges to require plaintiffs to keep secret the alleged abusers named in lawsuits, before discovery even begins.

The 2011 claim filed by Sebastian Kelly against his former employer, Regional Paramedical Services Inc of Jasper, Alabama, described a hyper-sexualized environment in which his colleagues allegedly exposed their genitalia regularly and discussed sex in graphic terms. He described one instance in which a colleague told Kelly that he cant be gay, you like titties too much.

CLASS SECRETS

CONCEALED EVIDENCE

Advertisement

Continue reading at Reuters »