Disgorging Harvey Weinstein’s Salary

Abstract

Harvey Weinstein dramatically altered the way that people view sexual harassment in the workplace. While workplace sexual harassment is far from a new phenomenon – with many perpetrators of such harassment (including Weinstein himself) having gotten away with this misbehavior for decades – the exposure of Weinstein’s misdeeds opened the floodgates, leading countless women from a variety of work environments to share their own experiences with sexual harassment at work. As the #MeToo movement has continued to occupy the headlines, workplace harassment has begun to seem as ubiquitous as it is distressing. This intensified spotlight on sexual harassment has exposed a persistent frustration among academics, the media and members of the public, as society puzzles over what can be done to eliminate sexual misbehavior at work. Robust research indicates that conventional mechanisms for addressing sexual harassment, like carefully worded policies or mandatory training sessions, fail to root out perpetrators like Weinstein. Instead, research demonstrates that only significant cultural change in the workplace can reduce instances of this sexual misconduct. This Article explores a new – and potentially radical – way of instilling such cultural change. This Article describes a little known but powerful Remedies principle known as the Faithless Servant Doctrine, which allows for the disgorgement of compensation from employees who breach their fiduciary duties to their employers. When employees breach their fiduciary duties by creating or perpetuating a culture of workplace harassment, the Faithless Servant Doctrine could provide companies with a powerful tool to demonstrate that this sexual misconduct negates any value that a misbehaving employee otherwise brings to the workplace. This Article questions whether using compensation disgorgement to hit wrongdoers where it hurts – in their wallets – finally could foster the cultural shift that is necessary to decrease sexual harassment at work.