When the news of Harvey Weinstein’s serial sexual predation broke in early October, part of what was so shocking was that many of the women harassed by Weinstein had privately come forward with their claims, only to be paid off by his company in exchange for their silence.
Confidentiality agreements in sexual-harassment and -discrimination claims have become standard practice, particularly in settlements between two parties with a large power disparity, like an employee and employer, a student and a university, or a powerful media mogul and a young actress. Institutions are often only willing to pay a settlement fee on the condition that the case is resolved—the victim can’t continue to pursue her case in court—and can’t be talked about again. “Confidentiality has become almost rote,” says Amanda Farahany, an Atlanta lawyer who frequently represents individuals in sexual-harassment and -discrimination cases. David Sanford, a prominent plaintiffs’ lawyer who works primarily on discrimination cases, estimated that “about 80 to 90 percent” of the cases he takes on are resolved confidentially before a lawsuit can even be filed. These are claims that will never be publicly known, and Sanford’s figure is typical.
This leaves other employees vulnerable to harassment by repeat perpetrators, and deprives the public of information about how widespread the problem of workplace harassment is. The rare cases that have become public—like those of alleged serial sexual assaulters Harvey Weinstein and Bill O’Reilly, and the rampant gender discrimination at Jared and Kay Jewelers—have done so despite confidentiality agreements because they involve high-profile actors and are under intense press scrutiny. But they are exceptions to the rule. Most workplace disputes, including claims of sexual assault, harassment, and discrimination, will never be publicly examined in the same way.
To address the harms that confidentiality requirements impose, lawmakers in a handful of states, including New York, New Jersey, and Pennsylvania, have floated bills to bar nondisclosure provisions in employment contracts and in settlements relating to claims of discrimination, retaliation, and harassment. In California, state Senator Connie M. Leyva introduced a similar bill when the legislature reconvened last week. Although the language differs from state to state, all of the proposed laws aim to address the problem that most victims of workplace sexual assault and harassment settle their claims with employers on confidential terms.