How Breaking a Nondisclosure Agreement Works

Nondisclosure Agreements and Sexual Harassment

Amber Tamblyn, Michaela Angela Davis, Cynthia Erivo, Ashley Judd and Mira Sorvino Amber Tamblyn, Michaela Angela Davis, Cynthia Erivo, Ashley Judd and Mira Sorvino
Amber Tamblyn, Michaela Angela Davis, Cynthia Erivo, Ashley Judd and Mira Sorvino attend 'Time's Up' during the 2018 Tribeca Film Festival in New York City. More than 80 women, including Judd and Sorvino, have accused Harvey Weinstein of sexual misconduct or assault. Astrid Stawiarz/Getty Images for Tribeca Film Festival

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.

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