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Nondisclosure Agreements: Sexual Harassment and the Contract of Silence

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By Annie Hill
November 14, 2017

On October 5, 2017, the New York Times revealed that Hollywood producer, Harvey Weinstein, paid eight settlements in response to allegations of sexual harassment, dating back to 1990. The article detailed a behavioral pattern in which Weinstein lured women into meeting with him on the pretense of work and then appeared in various states of undress, demanded a massage, touched women without consent, or asked them to watch him shower. Weinstein’s conduct was condemned, but contextual questions soon emerged: who helped him create opportunities to harass and assault women, and who refused to see the harassment and hear victims’ complaints? Many people privately knew about Weinstein’s behavior. His sexual violence did not become public, however, due to the use of nondisclosure agreements (NDAs) in settlements with victims. Purportedly part of the solution to harassment (i.e., legal settlement), NDAs can facilitate harassment by keeping sexual violence secret and victims silent.

The Weinstein scandal exposes not only his violence against women, but also how NDAs can be used pre-emptively and post-harassment to silence victims and threaten them with sanction for contractual breaches.

Pre-emptive NDAs protect information before it is shared or known, and are often in place to protect trade secrets or the reputations of companies and individuals. For example, companies obtain NDAs before providing details about new products to ensure the information is not stolen or given to competitors. Companies also use confidentiality agreements to stop employees from saying anything damaging to an employer’s reputation. Weinstein Company employees signed contracts prohibiting them from making statements that could harm its reputation or the reputation of employees, including executives. This type of NDA contracts employees’ speech as a condition of employment—a remarkably coercive practice that is conducive to hostile workplaces because harassers know their coworkers are particularly vulnerable and unable to speak out. A third use of NDAs occurs after harassment when a harasser or employer enters into a legal settlement with the victim(s) that forbids speaking about the case as a condition of settlement.

NDAs are designed to control and protect information, but the live question is what kinds of information should fall under their protection.

In the context of sexual harassment, NDAs are pernicious contracts. People who engage in harassment try to control victims and information, and employers align their interests with harassers when they use NDAs for reputational damage control. NDAs do not offer equal protection to both parties because they disable victims from talking about experiences that impacted their professional lives and enable harassers to hide information pertinent to their professional reputations. Contrary to NDAs that permit parties to do business together or protect proprietary rights, NDAs that hide harassment withhold crucial information from the profession and the public.

Employing a harasser is both an institutional liability and a public hazard. An article in The Guardian on sexual harassment in academia notes how NDAs allow harassers to change employers while hiding a history of professional misconduct. Once employed at a new institution, it can take multiple years and victims before a harasser’s behavior is, again, reported and addressed. If new victims obtain settlement, NDAs can, again, be utilized to protect the reputation of the employer and, by extension, the harasser. A cycle of victims speaking out and then being silenced via settlement works with, not against, the cycle of sexual violence.

US federal law prohibits retaliation for reporting discrimination, yet NDAs offer legal routes to discourage victims from reporting harassment and sharing information with others.

According to a 2002 decision by the National Labor Relations Board, employees have a right to discuss sexual harassment complaints among themselves and to engage in concerted activity, such as union organizing, to protect others. The National Labor Relations Act of 1935 defines interference with employees’ right to concerted activity as an unfair labor practice. Today, a long tradition of women’s “whisper networks,” warning others about sexual harassers, is being transformed into public speech through social media platforms. While the law may be wielded against victims who speak publicly, they must because the law often fails to prevent and correct sexual harassment. Warning each other is still women’s work.

At this writing, more than 80 women have publicly stated that Weinstein harassed, assaulted, or raped them. The eight reported settlements only hint at the scale of this one man’s four decades of sexual predation. Serial harassers are invested in silencing victims, especially those who fight all the way to settlement and pose a real risk of exposure. The New York Times called on Weinstein to release his accusers from NDAs, and some women breached them to come forward. It is now essential to question the logic and law that forces victims to fight to speak and request “release” from contracts controlling their communication. That victims can be bound by NDAs compounds the abuses of power they have already experienced. To prevent further abuse, power must be taken from abusers.

The recent scandals involving Harvey Weinstein, Roger Ailes, Bill Cosby, and Bill O’Reilly, as well as harassment scandals within academia, show that women at work and in search of career opportunities continue to experience discrimination and disenfranchisement.

We should ask why we expect victims to speak out when the pressure to stay silent is not only culturally conditioned, but can be contractually enforced.

Due to the difficulties of reaching settlement and bringing harassment cases to court, there are several arguments that NDAs help victims. First, victims of harassment may fear that knowledge of a settlement will harm future job prospects by marking them as litigious or troublemakers. Second, employers and harassers might be less inclined to negotiate or pay a settlement if they cannot obtain an NDA, a situation that could diminish victims’ bargaining power in recovering damages. Third, sexual harassment stigmatizes victims and having what a harasser did made public can be embarrassing and harmful to victims. These concerns are valid, yet they all speak to the skewed cultural context in which victims salvage careers and rebuild their lives. Stigma and professional repercussions reinforce rape logic, which I analyze elsewhere, by blaming and punishing victims for sexual violence committed against them.

NDAs are rarely in the victims’ interest because they shield the powerful and can be installed in perpetuity. Therefore, a concerted effort to resist NDAs is a crucial step in ending discrimination and unfair labor practices.

As the outpouring of harassment stories grows—including from female lawmakers in Congress—this watershed moment suggests that many victims want to speak and the public wants to know.

Secrecy is an ally of sexual violence. Victims speaking out is a necessary form of prevention because it exposes the pattern of abuse, warns others, and encourages people to come forward, including other victims and bystanders. Given the vast and varied costs of sexual violence to victims and employers, companies should not use NDAs in harassment settlements or in employee contracts to protect their reputations. Employers ought to incur reputational damage if they harbor harassers. Continuing to deploy NDAs allows sexual harassment to become a type of “trade secret” across professions, in academia as in Hollywood. In the wake of Weinstein, it is clear that contracting victims’ speech means sexual violence will never be settled.

 

Annie Hill is Assistant Professor in Gender, Women, and Sexuality Studies at the University of Minnesota.

— Photo by Mihai Surdu