By now, we know the lurid details of Bill O’Reilly’s harassment of women at Fox News: the heavy-breathing phone calls; the lewd comments; the hotel-room invitations that, when refused, could tank a career. The first sexual harassment–related settlement was back in 2004, with several more in the years since then.
Why didn’t we know about this pattern sooner?
The answer is simple: confidentiality agreements, which employers often require as a condition of settlement and which prevented several of O’Reilly’s victims from talking.
It’s easy to understand why businesses would push for these nondisclosure provisions, also known as “gag orders.” After all, if a large settlement, containing a description of the allegations and a sizable dollar amount, is made public, companies fear bad publicity, potential financial consequences, and follow-up lawsuits by other employees.
What may seem more puzzling is why employees sign on. After all, many workers who step forward seek not only damages but also justice and change, hoping to spare others their painful experience.
The truth is, employers often demand confidentiality as a deal-breaker: no quiet, no cash. For workers who have been struggling financially, especially those who have been fired, it’s hard to turn down a reasonable offer, especially when the alternative is a prolonged court battle with uncertain results. Some may fear blacklisting or other career damage; one of O’Reilly’s victims reportedly did not complain for this reason. Worse still, ever more companies require their employees to sign mandatory arbitration agreements as a requirement of taking a job; these agreements prevent people from filing in court at all, and also from sharing the outcome of any arbitration.
It’s pretty clear, then, why employers want gag orders and why workers end up signing them. But here’s the problem: The parties to these agreements are not the only ones who have an interest in them. There are consequences for all of us when settlements never see the light of day.
Confidentiality agreements can enable improper and illegal behavior to continue—as happened with O’Reilly—because they don’t force employers to solve the underlying problem. Beyond the impact on any specific workplace, however, confidentiality agreements permit the broader ills of harassment and discrimination to fester quietly and hidden from sight. Public disclosure and media coverage of settlements inform lawmakers and the general population about the true scope of persistent social problems. News coverage educates workers about their rights and empowers them to speak up; it also powerfully deters violations by other employers.