End of the Nondisclosure Agreement? Not So Fast

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.”

The rot in USA Gymnastics goes beyond Larry Nassar

I mean, how many of us can honestly say that, until now, we had the utmost confidence in the adults at the top of U.S. gymnastics? I keep thinking of the moment in 1996, when coach Bela Karolyi urged Olympian Kerri Strug to ignore her injured ankle long enough to execute a final vault for the team gold medal. As the bearish coach carried the tiny heroine to the medal stand, I was as appalled by him as I was inspired by her.

.. Having witnessed the casual way in which Strug’s caretakers sent the injured teen to stick another landing — a feat of tremendous skill and beauty that ends with roughly the same violent impact as being thrown from the roof of a garage — the whole world was on notice. Certain values guided the thinking of these people, and safety of the athletes was not high among them.

 .. So it came as no great surprise when stories cropped up from time to time of psychological abuse inside the training camp run by Karolyi and his wife, Marta.
.. Scott Reid of the Orange County Register let us know that gymnasts training for Team USA were subjected to near-starvation diets — 900 calories per day to fuel a world-class athlete. The purpose of this, as a study in the International Journal of Sports Medicine made clear in 2000, was to delay the onset of puberty
.. “In female gymnasts the onset of menarche can be influenced by keeping the amount of fat mass low.”
.. Nassar groomed his victims by smuggling food to them. Or that the adults in his skeevy orbit cared more about whether his “patients” won medals than whether the doctor was assaulting them.
.. Most elite athletes also cultivate self-discipline, ambition, self-sacrifice and endurance: admirable qualities, but ones that make young athletes highly vulnerable to exploitive coaches, trainers
.. Ours is not the first civilization to condone the torture of talented children because they delight us. For centuries, certain choirboys were castrated to preserve their sweet, high voices. As recently as the 1800s, “castrati” were among the most popular singers in Europe.Think of that during the next Olympics as you ask yourself whether our gymnasts are being fed. If the answer is no, change the channel.

In Larry Nassar’s Case, a Single Voice Eventually Raised an Army

Judge Rosemarie Aquilina, who presided over the case, called Ms. Denhollander the “five-star general” for an army of abuse survivors.

.. “You made this happen,” Judge Aquilina said. “You are the bravest person I’ve ever had in my courtroom.”

Ms. Denhollander said her only choice was to stand up for what was right, “no matter what it cost me.”

Much of the hearing’s legacy will be a cautionary tale for anyone in power who finds it easier to look away than to confront a Dr. Nassar. It will be about negligence and the incalculable harm caused by institutions that seem to prize self-preservation above all.

But Ms. Denhollander’s appearance in court was ultimately a hopeful reminder about the power of a single person.

.. “He penetrated me, he groped me, he fondled me,” she told the court. “And then he whispered questions about how it felt. He engaged in degrading and humiliating sex acts without my consent or permission.”

Later, she described the difficulty of learning to trust again — even the doctors in the delivery room where she had each of her three children. There was, she said, “a fear that hung over each birth” as memories of Dr. Nassar “cast a horrific shadow over what should have been an occasion of pure joy.”

.. Michigan State and U.S.A. Gymnastics, which made Dr. Nassar its longtime doctor for the national women’s team, were culpable in this case, too, Ms. Denhollander said.

.. She mentioned that Dr. Nassar had used his phony medical treatments on her after four other women had complained about Dr. Nassar to employees in the M.S.U. athletic department.

.. When Ms. Denhollander addressed Dr. Nassar, she remained stoic. She recalled the time he brought his young daughter to the office just so she could hold her.

“You knew how much I loved children and you used your own daughter to manipulate me,” she said. “Every time I held my babies, I prayed to God you would leave your abuse in the exam room and not take it home to the little girl born with black hair just like her daddy.”

.. As soon as The Star’s article alerted her to other abuse that had been overlooked in her sport, fear and shame began to melt away. Ms. Denhollander knew she had to tell her story.