Business As Usual? Nondisclosure Agreements and Sexual Harassment and Assault in the Workplace

Jun 28, 2019

The start of a new job often initiates a flurry of paperwork: there are documents to provide, documents to read, documents to sign. If you have been through this process before, you may sign with abandon, assuming you know the gist of your employer’s policies and procedures. But down the line, you may find yourself in an intolerable situation – and realize that you may have signed away your rights to speak up about it. Workers who are sexually harassed or assaulted by their bosses and co-workers face this dilemma every day: because they signed nondisclosure agreements (NDA) with their employers, they face job loss, lawsuits and financial devastation if they attempt to hold their abusers – and the companies that enable them – accountable.

Nondisclosure agreements work to protect businesses. They prohibit employees from disclosing trade secrets. They often attempt preemptive damage control by forbidding workers from creating slanderous social media posts. And many NDAs demand that accusations of sexual harassment and assault be handled within the organization. In other words, they forbid survivors from going public with their claims. Violations of these agreements often result in stiff financial penalties. For example, NBC News reports that McKayla Maroney, a former athlete with USA Gymnastics who was sexually abused for years by the team’s doctor, Larry Nassar, faced a $100,000 fine from the organization if she spoke about the abuse. After supermodel, Chrissy Teigan, publicly stated that she would pay this fine for the survivor, the organization announced that it would not enforce the penalty.

While advocates of eliminating NDAs argue that the agreements sacrifice victims while safeguarding perpetrators and the reputations of businesses, others contend that they provide necessary protections to both accuser and accused. The New York Times notes, “someone who has been assaulted or harassed may want to keep the details private, or they might be willing to do so if it helps them get a meaningful settlement, something that could help them move on. And a harasser may not be willing to settle if he knows the deal may become public.” While we must consider these potential outcomes, we must also consider that nondisclosure agreements have allowed serial sexual predators, such as film producer, Harvey Weinstein, to claim victims for years.

By using a social media platform to share experiences of sexual harassment and assault, the MeToo movement has illuminated the epidemic of sexual violence in this country. Survivors have joined voices and forces to demand that employers discontinue practices that re-victimize the most vulnerable members of their workforce. Lawmakers are taking note; according to The New York Times, at least 26 state legislatures and Washington have seen bills aimed at curbing nondisclosure agreements. At the federal level, Representatives have introduced the Ending the Monopoly of Power Over Workplace harassment through Education and Reporting (EMPOWER) Act. If passed, this law would create more opportunities for survivors to speak up about abuse and hold their employers accountable.

Our experienced attorneys use the civil justice system to hold perpetrators and the systems that support them liable for their offenses. If you or someone you know has experienced sexual harassment or assault in your workplace, please contact us for a free consultation.

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