The CBC is reporting Weinstein abuse allegations prompt U.S. lawmakers to try to ban non-disclosure deals. Specifically, they are attempting to prohibit clauses that prevent disclosure of sexual misconduct.
Sexual harassment and assault allegations against high-profile public figures have raised questions about the ethical implications of non-disclosure agreements and prompted some U.S. lawmakers to attempt to limit or scrap such deals.
NDAs are used extensively in high tech to protect trade secrets. It’s incompetent reporting to claim that such contracts are going to be made illegal. If you read on, it’s merely clauses against disclosing sexual harassment that are being limited.
These settlements, say some critics like California Democratic State Sen. Connie Leyva, allow perpetrators to buy their way out of trouble and escape justice, thereby jeopardizing the public and other potential victims.
While that is true, using government power to limit what can be agreed by two individuals is dangerous. Clearly, a contract shouldn’t be able to shield criminal activity, and it isn’t. Someone who discloses a rape to the police can’t be sued for violating a non-disclosure agreement. If the government oversteps its bounds, the courts will strike the new law down, but not before someone is forced to go through a long legal battle.
“People continue behaviours that work for them,” Leyva, who will introduce legislation to ban such deals, told CBC News. “If I can harass, assault women and just write a cheque to cover that up, and I’ve done it for years and years, why would I ever change my behaviour?”
Assault, being a crime, is not covered by a non-disclosure agreement. Also, men are subject to harassment and assault too. I expect Gloria Allred to be sexist, but Leyva should know better.
“I am not in agreement with restricting the choices that a victim has and requiring her to litigate publicly for many years against a high-profile figure, if that’s not what she wants to do,” women’s rights lawyer Gloria Allred told CBC News.
I agree with Allred, but my reasoning is different: If someone doesn’t want to sign such a contract, he or she has the option of not signing it. If someone wants to sign a contract that prevents them from going public about an act that isn’t a crime, they should be allowed to.
These agreements often offer a payout to an employee who claims they have been sexually harassed or assaulted by another employee or a senior executive. Many of the agreements contain a non-disclosure or confidentiality clause, meaning that in return for financial compensation, the alleged victim will remain silent about the allegations while the accused is not required to make any admission of guilt or culpability.
Again, I don’t believe that an NDA can prevent someone from reporting an assault to the police. Civil contracts can’t be used to prevent people from reporting crimes.
Many agreements include a non-disparagement clause, meaning the alleged victim cannot disparage their alleged harasser or the company as well as a “liquidated damages” provision. “If the facts are revealed, the employee automatically owes the employer some astronomical sum,” wrote Brooklyn Law School professor Minna Kotkinin the Washington Post. “This keeps many victims of harassment from making their experiences known to others who might face the same dangers.”
While this is true, it also prevents false allegations from damaging the other party, which is why these clauses are used.
This means that Zelda Perkins, a former assistant for Hollywood producer Harvey Weinstein who signed a non-disclosure agreement in 1998, is now vulnerable to possible legal action. Perkins recently broke her agreement and went public with allegations that her former boss tried to sexually assault a colleague 19 years ago.
Why did Perkins go public, rather than going to the police? And why did she wait 19 years to act?
“It’s not just famous men, it’s men in every industry,” said Nancy Erika Smith, who represents one of the women suing Bill O’Reilly. [These contracts] has allowed them to continue to be predators on women.”
I’ve never heard of these clauses being common in any other industry. I’ve never seen one in any employment contract I’ve signed, and I don’t believe that contracts would differ between candidates who weren’t working at a high level in a company.
Daniel Hemel, an assistant professor at the University of Chicago Law School, has questioned the enforceability of these agreements. Waivers such as those the Weinstein Company had employees routinely sign — which forbid employees to talk about sexual harassment and other workplace misconduct — may violate federal labour law, Hemel wrote in a column for Vox.
We’ll see, assuming that people like Perkins end up in court.
However, confidentiality clauses between employees and employers seem to have the backing of the U.S. National Labor Relations Board.
As I said at the outset, NDAs are essential for protecting trade secrets. The question is, does the labor relations board condone clauses that prevent disclosure of allegations of harassment.
That’s why, when the California State Senate reconvenes in early January, Leyva said she will introduce legislation to ban these confidentially provisions for public and private employees when it comes to allegations of sexual assault and sexual harassment in the workplace. “If they cannot enter into any kind of agreement, my hope is that it will just start a different way of behaving in the workplace,” she said.
And it most certainly will. Of course, some of those behavioral changes will include adopting policies like the Mike Pence Rule to mitigate the risk of false allegations.
“I think they’re going to be significantly curtailed,” Smith said. “And that means that we’re really going to make great strides …to allow women to go to work in safe and respectful environments.”
Let’s hope that this is what is achieved.
Allred said such legislative attempts are misguided. She said women who are victims of assault but have signed a confidentiality agreement can still be subpoenaed to testify in a criminal case if the district attorney wants to charge an alleged perpetrator.
This is true for assault cases, but it doesn’t address harassment.
Instead, these proposed laws, Allred said, would hurt the victim of harassment and abuse. She said this would require women to go through years of litigation in a case they may not win and force them to make public allegations they may want to keep private. “They don’t want to be sitting there in the witness stand in a court of law having to relive all of it. It’s not what they want. They want to have the choice of entering into a settlement.”
Allred is right. By intervening in what two parties are allowed to agree on in a contract, something may be gained, but something is also lost.
Personally, I think these changes could be positive. I’m concerned when the government takes away individuals’ rights to make arbitrary civil contracts, but I have less sympathy for corporations. Large companies have too much power, and they generally don’t want to negotiate with individuals. If you have a great offer on the table, it’s hard to walk away from it because there’s one clause you disagree with, and corporations count on this.