What we know about men like Harvey Weinstein is staggering. What is perhaps more staggering, however, is what we don’t know and will never know.
An unknown and possibly large number of victims are precluded from publicly talking about their experiences by confidentiality clauses that are almost always required when the high and mighty (and the low and lowly) settle claims of sexual misconduct. Another group of victims are prevented, or at least discouraged, from reporting abuse by the non-disclosure agreements — commonly known as NDAs — that are often a condition of employment.
In a broad sense, courts will enforce confidentiality clauses contained in settlement agreements and in the NDAs employees are required to sign. There are, however, significant limitations to the silence that abusers and employers can buy.
Confidentiality clauses have been a fixture in our law for centuries. They have been challenged by the courts and, with some exceptions, have been generally upheld. As a result, an unknown number of victims who would come forward to warn others of predators are effectively bound and gagged by our legal system. That, in turn, allows serial abusers (or abusers on a smaller scale) to move on to more victims.
The first opportunity to gag a victim can arise when employment is offered. Offers of employment, particularly when they come from public figures, are sometimes conditioned on the employee’s acceptance of an NDA in which the employee promises not to publicly disclose what they see or experience at work.
Sometimes, NDAs are buried without fanfare among other documents placed in front of a new hire. For the sake of self-preservation, employees should read what is presented to them and should keep a copy of what they sign. While employees have the right to consult with an attorney before signing documents, that option is more often than not impractical due to considerations of time, expense and “optics.”
NDAs become relevant when an employee wants to protest some aspect of work conditions. The trigger may be sexual harassment, discrimination, failure to pay wages, or a myriad of other perceived violations of the law.
On its face, an employment NDA may appear to prevent employees from complaining about serious abuse like sexual harassment. Fortunately, courts have recognized some exceptions that allow employees to protect themselves. First and foremost, employees should know that an NDA cannot legally bar them from complaining to management about illegal work conditions.
In addition, an NDA cannot prevent an employee from complaining to law enforcement about crimes such as rape or sexual assault. Likewise, an NDA cannot prevent you from complaining to government agencies charged with enforcing employment laws, such as the laws against discrimination, sexual harassment, failure to pay wages, and certain retaliation.
The key, from the perspective of the employee, is knowing whether a particular complaint is legally protected. While an employee may not need a lawyer to figure out that reporting a crime such as sexual assault to law enforcement is permitted, in other situations it would be wise to consult with an attorney to determine if a particular disclosure is permissible despite the NDA. People are always free to consult with an attorney because such consultations are by their nature confidential and are not deemed a violation of an NDA.
NDAs are also limited by public policy. For example, an employee cannot be prevented from filing and pursuing a lawsuit alleging violations of employment law. And they cannot be barred by an NDA from testifying pursuant to a subpoena (legal compulsion) in a lawsuit brought by a third party.
An NDA would, however, bar an employee from voluntarily disclosing information to other plaintiffs in the absence of a subpoena. Likewise, an NDA would not allow an employee to otherwise “go public” with allegations of abuse.
These issues raise an obvious and troubling question: what about warning other potential victims of abuse? In the future, the courts — and perhaps our lawmakers — may recognize that other forms of disclosure are permitted for the good of the public. For now, disclosures to governmental and law enforcement agencies are seen by the system as sufficient protection for others.
Another set of issues arises when victims settle legal claims against abusers. When sensitive matters such as claims for sexual harassment are settled, victims are almost always forced to agree to keep silent about the abuse in exchange for compensation from their abusers.
The term “forced” is not an exaggeration. Put yourself in the shoes of a victim of abuse at the hands of a celebrity or politician. Whether the victim has substantial means or not, he or she is going up against a wealthy and/or powerful individual, a team of high-powered lawyers, and perhaps even a publicity machine. The victim also faces expensive, time consuming, intrusive and risky litigation. Those factors compel many victims to seek settlements, whether before or after a lawsuit is filed. In exchange for money, the victim agrees to maintain silence.
Celebrities and many businesses have reputations — even ones that are fabricated — to protect. Reputational interests compel them to “put a lid on” damaging allegations as soon as possible. Keeping nasty allegations out of the courts (where they are public record) is only half the battle, however. Abusers and their businesses also need to prevent victims from talking about what they experienced outside of court. Especially in this age of social media, they are willing to pay substantial sums to those with legal claims in an effort to keep victims quiet.
The result of those pressures is insistence upon confidentiality clauses that are part of larger settlement agreements. Most people have never seen one of these confidentiality clauses, and would be stunned if they did. They are long, complex and inevitably intimidating. They typically say that victims, people acting on their behalf, their family members and others cannot either directly or indirectly reveal information regarding the complaint itself, the settlement negotiations, or the actual settlement.
But long ago, the people paying money realized that even those kinds of terms are just not enough to keep people silent. Victims could still go public, forcing their abuser to go through an embarrassing and public legal process to try and enforce the confidentiality clause of a settlement that the abuser never wanted to admit existed in the first place.
That predicament leads to perhaps the harshest aspect of today’s confidentiality clauses. Victims are often required to agree to pay a set amount of “liquidated damages” to the abuser in the event that the confidentiality clause is violated. The amount may be a percentage of the entire settlement, it may be the entire settlement amount, or even an amount greater than the settlement payment. It can also include paying the abuser’s legal fees.
Victims and their attorneys face difficult moral dilemmas. Should they accept money that may be desperately needed in exchange for general silence, or sign up for expensive and bitter litigation for the sake of others?
For now, agreements requiring confidentiality are generally enforceable. Time will tell whether the shocking allegations of serial sexual abuse that fill the media will cause a change in the law.
Gloria Allred and John S. West are partners in the law firm of Allred, Maroko & Goldberg. Ms. Allred and Mr. West and their firm specialize in employment rights, and have extensive experience representing victims of sexual harassment and other forms of illegal conduct. Ms. Allred is currently representing numerous women who allege that they were victims of sexual harassment by Harvey Weinstein. The authors can be contacted at amglaw.com