Question: Alan, I’ve been sexually harassed at work for years. I was once even give a “menu” of sexual acts with dollar amounts attached and told it was for supplement income. I resigned and asked for a severance to avoid legal proceedings.
Instead of accepting my resignation, my boss gave me a raise and said I was extorting him. I fear if I go through with legal action, he will charge me with extortion.
Name Withheld
East Leroy, Michigan
Answer: Dear Blog Visitor: Your question is quite welcome because it gives me a chance to remind people about employer claims of “Extortion!!” almost every time an employee raises her or his voice and says “I have legal rights!!”
As I have noted many times in this blog, in my experiences as a zealous advocate for employees for over 30 years, barely a single week has gone by without some law firm or some corporation calling me an “extortionist.” These days I simply laugh at such claims, because I know that it means only that they are desperate, uncomfortable, uneasy and without any true defense to what they (or their clients) have done wrong.
1. Extortion is threatening to harm someone unless they do as you wish. Extortion could be “I will break your arm unless you give me $10,” or it could be “I will tell your husband and the local newspapers that you have been unfaithful unless you work for me for free for a week.” In either case, you are threatening to harm someone – in the first example, to break their bones, and in the second example to harm their marriage or reputation – unless they give you something to which you have no right.
True extortion is a very evil thing, and constitutes a very serious crime, rightly punishable by years in jail. It is for this reason that I find it so abhorrent that employers and their legal counsel use false allegations of “extortion” to drive fear into the hearts of so many abused employees.
2. Extortion includes threatening to say or write something that will harm someone, whether or not it is true. Whether something negative about a person is true or false is irrelevant to whether or not it is extortion. So, for example, if a person is not a tax cheat, but you threaten to tell people that the person is a tax cheat unless he gives you money, that is extortion. And, too, even if the person is truly and provably a tax cheat, your threatening to tell people that unless he gives you money, it still is extortion.
Experience teaches us that threatening to expose someone for doing something they do, in fact, engage in that is either embarrassing, immoral or illegal is, in fact, more threatening than a false allegation, because at least in the case of a false allegation, the allegation can be disproven.
3. Extortion does NOT include threatening to file a legal claim or complaint at work, to a rights agency, or in Court. With one exception (explained below), it has been established and accepted that threatening to file a legal claim for sexual harassment, or other violations of law, is not extortion. This is the case even if you say or write, “Unless you settle this claim for at least $100,000, I will sue you for sexual harassment.” Bringing a case to Court, or threatening to do so unless you have a certain, minimum settlement, is most definitely NOT extortion. Rather, it is the way people have always, and will always, avoid, prevent and limit unnecessary lawsuits.
4. Threatening to go to the press with accusations of sexual harassment, or to make public statements, IS extortion; threatening to file a sexual harassment claim in Court – though Courts are open and public – IS NOT extortion. You might say to yourself, “What is the difference between (a) going to the press, and (b) going to Court, which often ends up in the press?” If you did think that you would be raising a great question. Our legal system views those two things entirely differently, and punishes one while it promotes the other. Why?
The reasons for the distinction, and the difference in treatment afforded the two behaviors, are twofold. First, Court proceedings entail scrutiny, and through cross-examination and the like, test the authenticity and accuracy of Court claims. On the other hand, statements made in private to persons, or to the press, are rarely given such thorough confrontation and examination. So, what you write and say about, or in, Court proceedings are a kind of “protected” communications, and not punished.
Second, as noted above, it is by making claims and making settlement “demands” to address damages caused by improper conduct, such as sexual harassment, that we limit and prevent potentially unnecessary lawsuits. And, you can be sure, the Courts love to eliminate unnecessary lawsuits by prior settlement of claims.
5. There is one EXCEPTION to this general rule: if the claim is entirely made up, in BAD FAITH. If anyone reading this article is thinking, “Oh, great, I think I will make up, out of thin air, a sexual harassment claim, and try to win some easy money that way,” FORGET ABOUT IT. Our legal system has a way of identifying and ferreting out entirely baseless, false and made up claims of harassment.
That said, don’t think that a valid claim, even if not won in Court, will bring about financial or other jeopardy to you. It would take actual proof of bad faith – such as an audiotape in which a supposed “victim” admitted an intent to concoct a false story to bring about legal or financial jeopardy for brining a claim into Court. That is so very rare that I know of no such case. But entirely and provably false claims of sexual harassment – just like entirely false allegations of extortion, are wrong, and should be punished to the fullest extent possible under law.
6. Here are two illustrative examples of where it was determined “non-extortionate” to threat of legal action for sexual harassment that were in the news in recent years. A few years ago the then-Governor of New Jersey, Jim McGreevy, was a married man with a young child. According to press reports, he received a telephone call from a lawyer who said words to the effect, “Governor, my client is a man, and he says that you told him he would not keep his job unless he engaged in sex with you. We want $5 million to settle, or we are going to go to Court.” Governor McGreevy called the FBI to report what he claimed was extortion. The FBI disagreed, advising the then-Governor that threatening a lawsuit if a certain settlement is not offered is NOT extortion. Because the claim turned out to be true, the then-Governor simply resigned.
Also a few years ago, according to press reports a TV talk host named Bill O’Reilly received a call from a young woman he employed as an assistant producer who told him that his insistence upon “talking dirty” on the telephone with her must stop, and she was going sue him for sexual harassment unless they reached a settlement for millions of dollars. She also mentioned to him that she had audiotaped some of the “dirty talk” sessions, and because they were a kind of evidence, they would likely be played in open Court. He sued her for extortion, and the Court promptly threw the case out, ruling that what she had done was NOT extortion.
7. To protect yourself from allegations of extortion, when you raise and request resolution of legal claims for such things as sexual harassment, it is wise to limit your communications to written ones. As I noted above, because I raise legal claims on my clients’ behalf almost every day, I am called an “extortionist” by opposing attorneys quite often. To protect myself from such pathetic allegations, when I raise legal claims I try to limit my communications to written form, preferably email, so that it cannot be alleged that I did commit extortion. Those who wish to raise such allegations, and insist on severance or other financial restitution/resolution, might consider doing so as well.
8. Employers’ allegations of extortion are usually nothing but fear-mongering; DON’T FALL PREY TO IT, PLEASE. I want you to know that I fully understand and appreciate the fear you feel that your employer may threaten to sue you for extortion, or file some sort of criminal complaint against you. Though I do not know all of the facts, events and circumstances of your situation, I don’t sense you are in any legal or other jeopardy on this basis.
I do know this: fear is not a productive emotion, and that it is used so very often to frighten good, honest, hardworking people who are not rich or powerful from standing up for themselves and exercising their legal rights, as the law permits them to do.
Should you have the need, we offer a Model Complaint of Discrimination, Harassment or Hostility that you can adapt to your own facts, events and circumstances. “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly!
Thank you for writing in. I hope this proves helpful, and that it dispels or at least reduces the fear you feel. I wish you the very best.
Deadlines are important; don’t let your severance deadline expire. To help you ask for more time, we offer our Model Request for More Time to Review/Sign Your Severance Agreement. It shows you “What to Say and How to Say It.”™ To obtain a copy, just [click here.] Delivered by Email – Instantly!
My Best,
Al Sklover
P.S.: You might be interested in our Master 94-Point Severance Negotiation Checklist, to give you the peace of mind and freedom from worry that you forgot to raise or entertain certain points of discussion and negotiation. To obtain copy, just [click here.] Delivered by Email – Instantly!
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