Should NDAs Be Banned In Sexual Harassment Cases?

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Jan 3, 2018

Victims of sexual harassment are no longer staying silent. The recent wave of allegations against popular and public figures has shown a sea change in how the United States addresses this issue. #MeToo has given victims a voice.

But while more victims are speaking out, many others are legally barred from doing so.

That’s because of a common practice in which victims — who are mostly women — agree to sign non-disclosure agreements as part of the settlement of a sexual harassment case. In exchange for monetary damages and often a positive reference, the women are required to stay silent on their abuse.

Now, some lawmakers are looking at banning the practice. State legislators in New Jersey and California are considering proposals that would bar companies from using non-disclosure agreements in sexual harassment cases. While these bills are well-intentioned, they could actually end up hurting women.

The Argument For

First, the argument for them.

Like many others, disgraced Hollywood producer Harvey Weinstein used non-disclosure agreements for years to keep the public — and potential future victims — from learning about his serial abuse and predatory behavior. These agreements protected the reputations of Weinstein and abusers like him, allowing them to continue hurting others.

The case for barring them seems straightforward. Without the agreements, the victims would have been free to come forward sooner, making it harder for abusers to avoid public scrutiny.

But that scenario misunderstands a few things about how sexual harassment cases play out. First, many victims don’t want to go public with their accusations, since that could potentially mean taking abuse from random men on the internet who target any woman who speaks up. And in many cases, their harasser is not famous enough to merit significant press attention anyway.

These victims are more than happy to sign a non-disclosure agreement and move on with their lives. If the agreement means the company is more likely to settle a lawsuit, they should have that ability.

Meantime, on the other side, corporate decision-makers and their lawyers are less concerned about justice for the victim than they are about protecting the company’s public image and possibly even its bottom line — especially in industries where they could face a customer backlash or at sensitive times when they’re facing a crucial merger or acquisition.

For the company, a non-disclosure agreement means they can insure against a public relations battle they don’t particularly want to wage. But if they can’t prevent a fight, they’ll fight with everything they’ve got in the only venue available, a courtroom.

Since companies have more resources at hand, that means dragging the case out with endless motions and squabbles over minor points of law. It means attempting to intimidate victims and other witnesses with intrusive questions during depositions. It means avoiding a quick settlement.

Companies don’t try to win these cases on the merits, either. Instead, the strategy is often to get the case dismissed by a judge before a jury has even been seated on some minor technicality, such as the way in which the case was filed or whether the victim went through the proper channels.

The legal standards are stacked against victims, too. One court dismissed a case after finding that a manager grabbing a female employee’s butt was not severe enough to be considered sexual harassment. That wasn’t a jury’s decision based on the facts, but a judge’s decision based on federal sexual harassment law.

For victims who just want to get on with their lives, that means a drawn-out, intrusive process in which their reputation will be diminished while they face an uphill battle to even get their case heard by a jury.

Other Options

So what else could we do other than bar non-disclosure agreements? One option would be to bar them while also disallowing companies from filing for summary judgment, which would force them to go before a jury, which would be more likely to be sympathetic to the victims. Some low-hanging fruit is to ban non-disclosure provisions that prevent a woman from talking to other women who might later contact her about similar claims.

Another option would be to limit non-disclosure agreements so that women can speak up after a period of time, or to limit the number of these agreements that a single harasser can use. Most companies don’t care about past harassment settlements that occurred under prior management anyway, and the current wave of stories has shown that sometimes it is not practically feasible for a company to enforce a non-disclosure agreement that is years old.

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