Why Confidential Sexual Harassment Settlements Are Bad For Women and Society
Bill O’Reilly pays $32M to settle a sexual harassment case and is now claiming to be the victim. Here’s a news flash, nobody pays you tens of millions of dollars because they kissed you on the cheek or gave you an inappropriate hug.
Furthermore, this isn’t O’Reilly’s first rodeo. He’s paid millions of dollars to settle other claims. And those are only the cases we know about. Because of the confidentiality clauses he’s forced his victims to sign, he knows you and I will never know all the underlying circumstances which I’m guessing, would make most of us sick to our stomaches.
Suffice it to say that I’m not a fan of O’Reilly. I wouldn’t feel comfortable with my daughter working in the same company that he’s employed in.
But O’Reilly is only the tip of the iceberg. As many of you already know, other wealthy and high-profile men like Harvey Weinstein and Donald Trump have also reportedly used these “pay for silence” confidential settlement agreements, also known as non-disclosure agreements (NDA), to avoid having their dirty laundry made public. You may not know that these men entered into NDAs but think about it for a minute, that’s the whole idea behind NDAs, to keep things quiet.
From my perspective as a trial lawyer, let me tell you exactly why I believe people and companies use NDAs. The reason isn’t premised upon innocence, spin or politics. It’s simple.
The primary reason most people and companies use NDAs is that they don’t want you to know what they did. They use NDA’s to cover up embarrassing, wrongful, and sometimes criminal acts. Generally speaking, the higher the amount of money paid, the worse the conduct.
Over the last 30 years of practicing law, I’ve seen NDAs used in cases involving dangerous products, police misconduct, medical malpractice, and corporate wrongdoing. Because of these NDAs, the average person doesn’t have a clue what products are killing people, which professionals are harming others, and which executives are putting profits over people. I picked these industries and professions because I’ve handled cases involving these areas of law. The fact is, NDA’s are used to cover up dangerous problems and protect dangerous people in every occupation and profession.
Recently, with all the breaking news surrounding sexual harassment in the workplace, I believe more and more people are starting to understand how NDAs are exposing innocent women in the workplace to predators. The problem is that new potential victims are not made aware of past victims, circumstances and risks. When all said and done, NDAs are allowing predators to continue hunting and hurting women without consequence or ramifications.
Mountain Lions Who Prey on People
Years ago, the County of Orange was held liable when it failed to let hikers and campers in the Casper Wilderness Park know that mountain lions had been seen stalking people. Eventually, a lion attacked a little girl and almost killed her. The jury found that the County knew the dangerous lions were in the area stalking people but failed to warn potential victims.
I believe allowing companies that fail to warn female employees that sexual harassment predators are are present and stalking female employees are guilty of the same thing. Failing to eliminate the predator and warn about the problem creates liability in and of itself.
Today, we’re all hearing about well-known men in the entertainment and tech industries who have been engaged in sexual harassment for years. In many of these cases, we’ll never know what did or didn’t actually happen. We’ll never know the extent of the wrongdoing or truth. The number of victims and number of instances is purposefully withheld through NDAs.
Why is this important? Because just like the hikers at Casper Wilderness Park, women working with these predators may not be aware of the risk they are exposed to and may never know the extent of the underlying wrongful conduct (an unwanted hug, remark, or forcible rape.) They are potentially the next victim.
That’s not OK.
I’ve had people say, “Hey Mitch, the NDAs are negotiable. If a victim doesn’t want one then she shouldn’t agree to one.”
My response is that that’s great in theory, but in the real world that’s not how things work.
The Truth About Settlement Negotiations
Here’s the deal. There’s a terrible inequity at the bargaining table between wealthy executives employed and protected by billion dollar companies and a single victim who is trying to do the right thing to protect her family and career. While NDAs are technically negotiable in most states, the reality is that if the victim fails to agree to one, no deal will be made and she’ll be forced through expensive and protracted litigation. Her name will be put through the mud and justice will not be served. Most victims do not have the time or resources to properly litigate a case for years.
I share my solution below but first, I want to show you what a typical NDA clause may look like. In the real world, an NDA will normally contain many more clauses, details, and even be pages long. But to keep things simple and pull back the curtains, here’s an example:
Confidential Nondisclosure Agreement
The term “Confidential Information” means any and all information relating directly, or indirectly, to the facts and circumstances surrounding or relating to this sexual harassment settlement agreement. This includes, but is not limited to, the alleged sexual harassment and all other wrongdoings, in and out of the workplace, which includes, without limitation, all facts, circumstances, employment records, reports, business records, contracts, financial information, and the names of employees, employers, witnesses, and their spouses, relatives and friends, and all other related information.
The settling party will hold the confidential information in confidence and will not disclose the confidential information to any person or entity without the prior written consent of the company.
If it appears that the settling party has disclosed (or has threatened to disclose) confidential information in violation of this agreement, the company shall be entitled to an injunction to restrain the settling party from disclosing the confidential information in whole or in part. All monies paid under the terms and conditions of the agreement shall immediately be reimbursed to the company by the settling party with interest at the legal rate. The company shall also be entitled to pursue all monetary damages including but not limited to attorney fees, costs, and expenses associated with enforcing this agreement. Liquid damages at $15K per disclosure will also apply on top of all other damages.
Because of the significance of these NDAs, victims who sign them need to honor the terms and conditions. The predators know this and in many cases, continue to harm other victims who are unaware of what’s happened in the past. Predators know they are buying silence and an opportunity to continue hurting women and their careers.
For public policy reasons, I believe NDA’s should be made illegal. For a healthy workplace to exists and, to put pressure on companies to remove all predators from the workplace, full open and transparent settlement agreements, without NDAs, would help everyone reach this goal.
By making NDAs in workplace sexual harassment cases illegal, no longer would predators or the companies they work for, be allowed to hide behind NDAs. Also, no longer would new potential victims be kept in the dark about prior victims, prior attacks and the identity of the predators. One more protective roadblock that has allowed companies to continue employing money making predators would be removed.
Right now, predators are running around unchecked and many big companies are letting them do this because in their eyes, quarterly profits are more important than the safety of women. Getting rid of NDAs in employment sexual harassment cases will promote full transparency and force much needed change in the workplace.
For all of the above reasons and until NDAs become illegal, I’m afraid not much is going to change. I hope I’m wrong, but unless there is accountability for sexual harassment in the workplace, I don’t believe change will happen in the long run. Consequences drive change and making NDAs illegal will help make that happen.
I’m not a sexual harassment lawyer and am not looking to bring in new sexual harassment cases from this blog post. I am a trial lawyer who can’t stand NDAs in settlement agreements involving wrongdoing.
If you are the victim of sexual harassment in the workplace, contact an experienced lawyer immediately. Do not try to handle the matter yourself. The company, its executives, and legal team are all seasoned professionals. They know what to say and do to minimize your claim. Most experienced sexual harassment lawyers will handle your case on a contingency so you will not have to pay any money out-of-pocket and, take you buy the hand and protect your legal rights. If you need help finding a good lawyer in your state, try these three steps.
In a related post, I shared tips to help victims protect themselves. Until we rid the workplace from sexual predators, I thought women may find this information useful. Here’s the post, “Safety Tips From a Trial Lawyer: How to protect your daughter from the Harvey Weinsteins of the world!”