Sexual harassment and abuse in a wide range of industries has made major headlines in recent months. Heavyweights in Hollywood and the media, along with CEOs of major corporations, are all losing their reputations as allegations come to light. With more people being aware than ever before about the dangers of sexual impropriety in the workplace, now is an excellent time to introduce more stringent policies and to implement comprehensive training at all levels of any organization.
The recently passed federal tax law adds another layer of complication to the settlement of sexual harassment and abuse claims in the workplace. Previously, employers could deduct the cost of settlement payments made to the victims of sexual harassment. It also was possible to deduct the cost of severance packages that were given to at-fault employees. The new tax legislation appears to put an end to this practice.
This new tax law adds § 162(q) to the Internal Revenue Code as follows:
“(q) PAYMENTS RELATED TO SEXUAL HARASSMENT AND SEXUAL ABUSE.—No deduction shall be allowed under this chapter for—
(1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or
(2) attorney’s fees related to such a settlement or payment.”
In other words, when the settlement of the sexual harassment claim involves a non-disclosure agreement, the employer will no longer be able to deduct the cost of those proceedings on their federal taxes.
As straightforward as the law’s wording is, its application promises to be complex. What happens if the plaintiff alleges other forms of harassment or discrimination in the same proceedings? Is the cost of settlement for those claims still deductible? If the employer disagrees that the payments should not be deductible, what means do they have to fight it? Going to court would all-but guarantee the publication of information that is subject to the non-disclosure agreement.
The new federal tax law gives employers one more excellent reason to train all employees regarding the dangers of sexual harassment and abuse in the workplace. Preventing these incidents before they happen is the best way to avoid complicated tax questions and litigation.
Feel free to contact me, Richard Oppenheim with your related legal questions. I may be reached at 818-461-8500 or by using the “Contact Us” box in the right column.