openpolitics.com

Despite building backlash, lawyers say companies will keep using confidential settlements in sexual-misconduct cases

In recent months, revelations that Hollywood producer Harvey Weinstein and other high-profile individuals reportedly used such agreements for years to silence their accusers have sparked debate about the merits of requiring secrecy as a condition to pay off sexual-misconduct claimants. Critics say the agreements can end up protecting serial predators and putting psychological stress on victims to keep silent about their experiences.

This month, after filing for bankruptcy protection, Weinstein Co. said it would end any nondisclosure agreement that has “prevented individuals who suffered or witnessed any form of sexual misconduct by Harvey Weinstein from telling their stories.”

.. many lawyers say the use of nondisclosure agreements to settle sexual-misconduct claims is likely to continue. Without promises of confidentiality, they say, companies will be less willing to resolve disputes or pay large settlement amounts. Part of the rationale put forward by companies: keeping settlements secret is necessary to stop other disgruntled employees from seeking similar payouts.

In some instances, victims desire confidentiality to avoid ostracization from future employers and to move on without unwanted attention. If a harassment case goes to court, companies could try to publicly smear the victim’s reputation in a protracted legal fight.

.. Often, victims try to resume their careers and don’t want the public to know they were victimized

.. companies could try to sidestep the rules by re-categorizing sexual-harassment settlements as claims that aren’t subject to the new laws, such as sex or race discrimination

.. The use of nondisclosure agreements in sexual-harassment settlements took off in the 1990s, after federal civil-rights law was amended to allow for bigger monetary awards in employment-discrimination cases, attracting more plaintiffs’ lawyers to the area. As court dockets became overburdened, judges pushed for more cases to settle out of court, leading companies to insist on confidentiality in settlements.

..  in a high-profile case where details are already public, institutions may be reluctant to sue because of concerns about the public-relations backlash.

USA Gymnastics has said it won’t pursue legal action against Olympic gold-medalist McKayla Maroney for possibly violating the terms of a $1.25 million confidential settlementshe signed in 2016 to resolve sexual-abuse claims. She filed a lawsuit last year that seeks, in part, to have the confidentiality provisions of that agreement invalidated.

.. When deciding whether to enforce a confidentiality agreement, a judge can consider whether the contract violates public policy and decide whether the company’s interest in keeping the settlement private is outweighed by reasons the information should become public.

.. “It can lead to complacency within an organization because they know complaints won’t ever see the light of day,” Ms. Yang said. Eliminating NDAs “could create more incentive for employers to stop it early.”