More than 50 women have now accused Hollywood producer Harvey Weinstein of sexual misconduct, yet for years no one made a peep publicly. It appears that the women kept silent because they had signed one or both of two kinds of confidentiality agreements (also known as nondisclosure agreements, or NDAs): either a workplace NDA or a settlement NDA. In either case, the agreements appeared to bar the women from speaking up about Weinstein’s behavior. How can it be legal for a predator to force someone to shut up after they’ve been sexually harassed or even assaulted or raped?
Workplace confidentiality agreements
Employees at Weinstein’s company were required to sign NDAs that prohibited them from speaking publicly about misconduct in the workplace, including sexual harassment. While such workplace NDAs are commonplace, the National Labor Relations Board (NLRB) has said they are actually an unfair labor practice under the Wagner Act. (The only exemption is for domestic workers, independent contractors, or supervisors, who can legally be required to sign this type of agreement.) Nonsupervisory Weinstein employees who signed this type of NDA may have thought the agreement was legally binding, which explains why many women said nothing.
Settlement confidentiality agreements
In contrast, if an employee brings a lawsuit for sexual harassment, it’s perfectly legal for the parties to enter into a settlement in which the employer pays the employee money and the employee signs an NDA, promising not to disclose what happened. An accused party can also enter into such a settlement with someone who is not an employee (in Weinstein’s case, for example, with an actress who was simply talking to the producer about a potential job but had not been hired). While no one can be forced to sign a settlement NDA, many victims feel it’s their only option for obtaining any compensation for their abuse.
Since Weinstein settled so many cases, including his now infamous sexual abuse of actress Rose McGowan, how can the information now be public? NDAs signed at the time of employment may be illegal and unenforceable as discussed above. As for an NDA signed in exchange for a settlement, a party that that subsequently breaches the agreement by speaking out risks having to pay damages. However, it has been reported that McGowan’s settlement agreement didn’t include a confidentiality clause. And although a settlement NDA can prevent a person from speaking publicly (such as to the media), it’s generally against public policy for any agreement to prevent someone from reporting a crime. So, if a woman is raped, takes a settlement, and signs an NDA, she can still report the crime to the police.