Q: Are confidentiality agreements and non-disparagement agreements related to sexual harassment claims unlawful?
With the #MeToo movement, it became clear that often sexual harassment and assault claims don’t come to light, especially in the case of famous or wealthy serial harassers and serial predators.
Once a person settled the lawsuit with a harasser, the settlement agreement typically included strict binding confidentiality provisions, which had the effect of buying the silence of the victim.
For example, if you have a famous person such as Harvey Weinstein who was accused of sexually harassing a woman in connection with his duties as a movie executive, that woman could sue, and hopefully, get adequate damages for the suffering she incurred. But as part of the settlement, she would be forced to sign a confidentiality agreement which stated that she’s not to discuss the terms of what happened during her employment or her lawsuit against the company or Mr. Weinstein.
If she broke the confidentiality of the case, made it public or spoke out about it, and the company found out, the could sue her for the return of the money in the lawsuit or some significant portion of it as “liquidated damages” which are damages that are an agreed upon amount that is not subject to proof. In this hypothetical Weinstein case, if he could prove that one of the sexual harassment victims disclosed facts concerning the case or her settlement with him, he wouldn’t have to prove the amount by which he was actually damaged. He would be entitled to the sum of money that they agreed upon at the time of the settlement.
The confidentiality agreement has a very coercive effect and can make it harder for future victims. One of the main ways you can prove sexual harassment is by showing that this is a pattern of behavior, and that the accused has engaged in this kind of conduct on an ongoing basis and in a variety of contexts. The confidentiality provisions in those cases had the effect of making it much more difficult to find the evidence that would be helpful in proving the current claim.
The undoing of the confidentiality provision in these contexts is meant to allow victims of sexual harassment who have access to relevant evidence to prove these claims of sexual harassment.