
I am adding a “sexual misconduct clause” into all of my investment agreements - sarahnadav
https://medium.com/@sarahnadav/lena-dunham-bey-the-apology-plague-and-my-rage-against-the-machine-sorrynotsorry-eb6ce9e80f70#.nqxe85hyz
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dikaiosune
> If an investor or employee of the investor/accelerator/incubator makes a
> sexual advance towards me or anyone in my company, then they are stripped of
> all of their shares in my company (even the ones that have vested) and there
> will be a public notice to shareholders as to the reason why.

As someone unfamiliar with investment contracts, what's the typical burden of
proof like for comparable "nuclear option" moral clauses? Is there typically
some kind of evidence required in the contract? Or is it just assumed to be
"whatever will hold up in court"?

To be clear, I think this is a very interesting idea, and am in fact a little
sad it isn't common place (it seems like something that _should_ be covered by
the kind of morality clauses which I understand to be common place). However,
an idea like this needs to be enforceable to be practical and thus valuable.

EDIT: Since this is an often controversial subject, I want to be very clear:
I'm not trying to imply that founders/employees will make these claims up.
Rather, that assertion is one which is very likely to be used by the well-paid
legal teams of whoever you're trying to evict from your board. Would this kind
of clause actually stand up in court under that kind of assault?

~~~
sarahnadav
there are all kinds of "bad actor" and nuclear option moral clause. I
personally (as a founder) once had to sign a "non-embarrassment clause" where
I guaranteed not to embarrass the investor.

Since I am basically creating this with my lawyer, I am going to make it
unambiguous- either a recorded conversation, a verifiable conversation on
text/whatsapp/email, a photo or in extreme cases a rape kit.

In my opinion this should be a deterrent rather than something that would ever
need to be enforced. But it can't be a "he said/she said" either

~~~
brador
> either a recorded conversation, a verifiable conversation on
> text/whatsapp/email, a photo or in extreme cases a rape kit.

It sounds good in theory, but the definition of sexual advance is vague.

The investor will be thinking - what if some day you feel that you just want
to take back the shares, how easily could you action this clause and what
protections do I have?

If we're talking a lost court case against the investor, then yeah that works
and is solid. If you want to action the clause without that then who will be
judging if the recording/photo etc. qualifies under the sexual advance claim?

~~~
sarahnadav
these are terms that I am working on with my lawyer- and I am sure investors
will have some push back and changes of their own

~~~
hulahoof
Why just protect women? Feels like you could help everyone with little extra
effort.

------
carapace
> If an investor or employee of the investor/accelerator/incubator makes a
> sexual advance towards me or anyone in my company, then they are stripped of
> all of their shares in my company (even the ones that have vested) and there
> will be a public notice to shareholders as to the reason why.

Wow, yes. This is going into any investment agreement I would ever consider
signing. This is powerful. It puts the emphasis where it belongs and give it
teeth.

I see a parallel with the anti-smoking campaigns. I think it's pretty lame to
pass a law telling, e.g. a bar owner they can't allow smoking in their own
place, but I'm willing to let it slide for a few decades until many fewer
people are dying of addictive poison (however voluntarily.)

In a healthy environment, people who are interested _in each other_ shouldn't
feel awkward about entering into a more familiar (than professional)
relationship, even in this context. However, we are not there yet, and in the
meantime investors and their employees making sexual advances at the people in
the companies they are funding should be considered beyond the pale.

~~~
sheepdestroyer
Just to point out that the law restricting smoking in bars/restaurants is
mainly there to protect employees who may else be forced to be passive
smokers. Obviously they should not have to make a choice between working and
protecting their health. Then, if the owner is _the sole_ staff present, yeah,
why not allow it in that case.

~~~
carapace
That, in my view, is exactly the sort of bad-faith sneaky leverage that the
anti-smoking hard core used to force the issue.

No one was "forced" to work in a smoke-filled environment, this part of issue
was framed as discrimination against non-smokers working in places where
smoking would be allowed.

It makes a kind of sense, right? OSHA violations for workplace exposure to
cancerous agents is a thing for a reason. But I never _liked_ the abridgement
of personal freedom. It would be possible (even now) to permit exceptions for
some businesses, but that wasn't what the anti-smoking lobby was interested
in, was it?

In any event, I see a weak parallel between the two situations: We accept a
(temporary and excessive) restriction for a time to correct a large and
otherwise-intractable social issue.

In the one case it was addictive poison, in the other inappropriate sexual
advances in formal business relationships.

~~~
sheepdestroyer
When you "have to" work, you do not have much choice. Sure you are not forced,
eh, you can quit or even not bother to apply if you are an "anti-smoking"
weakling... unless you need to feed your family I guess.

You can speak of the abridgment of personal freedom of the owner, but what
about the effective freedom to work in an healthy environment? Oh yeah,
regulations are there to ensure that. But I may be biased, I am from France
and support such things as 35h weeks and no-work-on-Sunday laws (to ensure
people can have a social life).

~~~
carapace
If you're in a situation like that, with literally no choice but to work in a
smoke-filled bar or your family will starve, then for goodness' sake _THAT is
the problem_!

;-)

As I said, a compromise could have been reached but the "aggressor", if you
will, was not interested.

(Also, as an American working stiff, I envy you your sensible arrangement. But
as a Bucky Fuller fanboy, I think we all should be working two hours a week,
and retire at twenty having worked a full career for two years. C'est la
vie...)

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hal9000xp
> If ... or employee of the ... makes a sexual advance towards ... or anyone
> in my company, then they are stripped of all of their shares in my company

Wait a sec, I don't get it. If I as employee like some girl and ask her for a
date, is it a sexual harassment?

To be honest, I don't like this trend...

~~~
sarahnadav
Did you actually read the post? I think I make it pretty clear

~~~
deftnerd
I must admit that I think that more clarity is a good thing. Would asking
someone on a date be considered an "unwanted sexual advance"?

Also, the term "unwanted" makes me wonder about the existence of a "wanted
sexual advance".

I worry that this whole concept is too fraught with "gut feeling" decisions
and that could cause injustice or liabilities.

It might be cleaner to say that romantic or sexual workplace relationships are
forbidden and that extends to investors, contractors, suppliers, vendors, etc.
if the relationship clause is violated, all the involved parties will be fired
or banned from interacting with the company, with any owned shares seized.

Basically like zero-tolerance policies in public school applied to the
business world. It's more harsh, but it's equally unfair to everyone.

~~~
sarahnadav
remember- this isn't for within the company, this isn't a workplace
relationship.(for the most part) this is about investors and founders. And
just like you have to go to HR for an office relationship, you would need to
do something similiar in a case like this

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belorn
What if the misconduct happens the other way around, by someone in the company
towards someone in the investor/accelerator/incubator?

~~~
sarahnadav
I think it should be a mutual agreement- it's not as if one side has the right
to be a "bad actor"

Although, I have literally never heard an investor complain about this as a
problem. (that doesn't mean it doesn't exist)

But this is about a power dynamic and putting proper boundaries in place.

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alenan
Nice post. I see sexism in tech everywhere. Its one of the points who I
personal hate in tech. Even if I´m a guy.

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masonic
<the men who perpetrate it the most are also the ones who hold the “keys to
the kingdom”... women don’t want to ruin their careers by speaking out.>

I was, up to this point, unaware that all sexual harassment in workplaces was
of women, by men.

~~~
sarahnadav
This isn't about the "workplace" this is about the Tech industry. And really
about investors and founders. Given the small percentage of women, especially
holding high level roles- I believe that it would be almost statistically
impossible for women to be the main perpetrators

