Nondisclosure Agreements and Sexual Harassment
The #metoo movement started with multiple allegations against Harvey Weinstein, but has expanded to include accusations of workplace sexual misconduct against dozens of powerful men in Hollywood, the media and politics. In many of these cases, the alleged victims of sexual harassment or sexual assault settled for undisclosed cash payouts and signed NDAs preventing them from going public with their stories.
One of these women, a former Weinstein assistant named Zelda Perkins, decided to break her NDA and talk to the press, despite the very real risk of being sued by Weinstein. Perkins and a colleague had received $200,000 to keep quiet about accusations that Weinstein had attempted to rape the other woman, but Perkins decided to tell her story to the Financial Times in 2017 to call out the unethical practice of using NDAs to buy silence in cases of sexual misconduct [source: Einbinder].
U.S. legislators are now proposing laws that would ban the use of NDAs in legal settlements specifically involving accusations of sexual harassment or abuse. There is currently legislation up for vote in three states — California, New York and Pennsylvania — that would effectively void any existing or future NDAs signed to resolve lawsuits where sexual misconduct was at play. The alleged victims, in some cases, would still be allowed to protect their identities [source: Gottesman].
Such laws recognize the fact that women are particularly hesitant to come forward with accusations of sexual misconduct if they believe that their experience was an isolated incident. If Weinstein's early victims weren't silenced by NDAs, who knows how many other women would have spoken up sooner about their own abuse or harassment?
But until laws banning NDAs in sexual harassment cases are on the books, women who have signed NDAs are still legally bound by the terms of their contracts. At least until one woman is brave enough to break her silence. There's an interesting legal argument that once allegations of sexual misconduct are made public, the information is no longer secret, which means that existing NDAs may no longer be enforceable [source: Bond and Croft].
Weinstein's accusers signed NDAs with the Weinstein Company, not the producer himself. When the company failed to find a buyer in 2018, it filed for bankruptcy and officially nullified all existing contracts, including the NDAs [source: Framke].
Author's Note: How Breaking a Nondisclosure Agreement Works
I went into this article with the opinion that NDAs in sexual harassment settlements were clearly a bad thing. First, they silenced the victim for calling out predatory behavior. And second, they prevented others from learning about the behavior and discouraged them from coming forward with their own #metoo stories. But I was surprised to learn about the potential benefits of NDA for victims. For starters, it keeps their names out of the news if they'd like to stay private. And it always gives defendants a strong reason to come to the negotiation table. Otherwise, they could insist on going to trial, which would be terribly expensive for the victim and could result in a not guilty verdict, leaving her with nothing. So I wonder if banning NDAs in sexual harassment cases is necessarily the best option. Obviously it's a complex topic that's finally getting the attention it deserves.
- Benshoff, Laura. "Cosby Convicted of Sexual Assault." NPR. April 27, 2018 (May 29, 2018) https://www.npr.org/2018/04/27/606292771/cosby-convicted-of-sexual-assault
- Bond, Shannon and Croft, Jane. "Nondisclosure agreements — an explainer." Financial Times. Oct. 24, 2017 (May 29, 2018) https://www.ft.com/content/80dcdd58-b893-11e7-9bfb-4a9c83ffa852
- Burdge, Ronald. "Confidentiality in Settlement Agreements is Bad for Clients, Bad for Lawyers, Bad for Justice." GP SOLO. Nov./Dec. 2012 (May 29, 2018) https://www.americanbar.org/publications/gp_solo/2012/november_december2012privacyandconfidentiality/confidentiality_settlement_agreements_is_bad_clients_lawyers_justice.html
- Cohen, Brett and Renaud, Michael and Armington, Nicholas. "Explaining the Defend Trade Secrets Act." Business Law Today. Sept. 2016 (May 29, 2018) https://www.americanbar.org/publications/blt/2016/09/03_cohen.html
- Dale, Maryclaire. "'I was frozen': Bill Cosby accuser Andrea Constand says she was drugged, groped." The Associated Press. June 6, 2017 (May 29, 2018)
- Einbinder, Nicole. "What Happens If Someone Breaks a Nondisclosure Agreement?" PBS Frontline. March 2, 2018 (May 29, 2018) https://www.pbs.org/wgbh/frontline/article/what-happens-if-someone-breaks-a-nondisclosure-agreement/
- Fabio, Michelle. "Do Small Businesses Need NDAs." LegalZoom (May 29, 2018) https://www.legalzoom.com/articles/do-small-businesses-need-ndas
- Framke, Caroline. "The Weinstein Company is officially bankrupt — and ending nondisclosure agreements that covered up abuse." March 20, 2018 (May 29, 2018) https://www.vox.com/culture/2018/3/20/17142650/harvey-weinstein-company-nda-nondisclosure-agreements
- Gottesman, Jason. "New bill aims to ban sexual misconduct nondisclosure agreements in PA." City & State Pennsylvania. Nov. 15, 2017 (May 29, 2018) https://www.cityandstatepa.com/content/new-bill-aims-ban-sexual-misconduct-nondisclosure-agreements-pa
- Hayes, Adam. "How NDAs Work and Why They're Important." Investopedia (May 29, 2018) https://www.investopedia.com/articles/investing/041315/how-ndas-work-and-why-theyre-important.asp
- Lobel, Orly. "NDAs Are Out of Control. Here's What Needs to Change." Harvard Business Review. Jan. 30, 2018 (May 29, 2018) https://hbr.org/2018/01/ndas-are-out-of-control-heres-what-needs-to-change
- Lobel, Orly. Phone interview on May 22, 2018
- Long, Jonathan. "5 Situations That Require a Nondisclosure Agreement." Entrepreneur. Feb. 2, 2017 (May 29, 2018) https://www.entrepreneur.com/article/288581
- Martin, Areva. "How NDAs Help Some Victims Come Forward Against Abuse." Time. Nov. 28, 2018 (May 29, 2018) http://time.com/5039246/sexual-harassment-nda/
- Mintzer, Rand. "Nondisclosure Agreement: What Is It? And What Happens If You Break It?" June 24, 2015 (May 29, 2018) http://www.mintzerlaw.com/white-collar-crimes/nondisclosure-agreement-what-is-it-and-what-happens-if-you-break-it
- National Labor Relations Board. "Protected Concerted Activity" (May 29, 2018) https://www.nlrb.gov/rights-we-protect/protected-concerted-activity
- RocketLawyer. "What is a Nondisclosure Agreement (NDA)?" (May 29, 2018) https://www.rocketlawyer.com/form/nondisclosure-agreement.rl#/
- Romo, Vanessa. "Stormy Daniels Files Suit, Claims NDA Invalid Because Trump Didn't Sign on the XXX." NPR. March 7, 2018 (May 29, 2018) https://www.npr.org/sections/thetwo-way/2018/03/07/591431710/stormy-daniels-files-suit-claims-nda-invalid-because-trump-didnt-sign-at-the-xxx
- Stevens, Gregg and Subar, Lorin. "Confidentiality in Settlement Agreements is a Virtual Necessity." GP SOLO. Nov./Dec. 2012 (May 29, 2018) https://www.americanbar.org/publications/gp_solo/2012/november_december2012privacyandconfidentiality/confidentiality_settlement_agreements_is_virtual_necessity.html
- Tiku, Nitasha. "How to Pierce the Secrecy Behind Sexual Harassment Cases." Wired. Dec. 4, 2017 (May 29, 2018) https://www.wired.com/story/how-to-pierce-the-secrecy-around-sexual-harassment-cases/