On October 5, 2017, the New York Times published an exposé of Harvey Weinstein, an influential film producer, which sparked what came to be known as the #METOO movement. As part of the report, Ashley Judd and numerous other actresses outed Weinstein for using his position of power to rape, sexually assault, and sexually abuse them–accusations that spanned over thirty years. Inspired by the courage of these women, countless others came forward to share their stories of sexual assault by individuals in positions of power. Survivors of sexual assault appeared to garner strength against their attackers as men in power had to account for their transgressions, often leading to job loss or criminal charges. While dozens of Weinstein employees knew about his conduct, only a handful ever confronted him, and Judd was the first to go public. Despite opening the floodgates to speak out about sexual assault, a significant number of survivors have been unable to share their stories because of non-disclosure agreements (NDAs), sometimes referred to as confidentiality agreements (CAs). In the situation of Mckayla Maroney, 2012 Gold Medal Olympian, USA Gymnastics forced her to sign a confidentiality agreement after settling over abuse by team doctor Larry Nassar. The provision would have prevented Maroney from testifying against her attacker at the expense of a $100,000 fine. Only after receiving a cornucopia of societal pressure did USAG decline to enforce the penalty against Maroney. While USAG claimed Maroney was the only victim that they forced to sign a non-disclosure agreement, NDAs have silenced countless other women. Likewise, the Weinstein cases involved not only quieting the survivors, but also all employees of the Weinstein Corporation. It became blatantly clear that NDAs had not only restricted survivors from sharing their story cathartically, but that they had also given abusive men a path to legally harass women while simultaneously holding onto positions of power. Notably, the power of employers to enforce these provisions against women is largely dependent on the public’s ability to chastise the employer, making it easier for low-profile cases involving smaller employers to continue in the dark. In response to the public outcry over CAs and, multiple states have pursued legislation to limit the abilities of employers to use NDAs in sexual harassment cases. In six states that legislation became law. At the end of September, two California bills went before Governor Jerry Brown to either receive a veto or signature. Furthermore, as part of the Tax Cuts and Jobs Act of 2017, Congress passed a section that prohibits tax deductions for settlements involving NDAs and sexual harassment.
“I Like You When You are Silent”: The Future of NDAs and Mandatory Arbitration in the Era of #MeToo,
2019 J. Disp. Resol.
Available at: https://scholarship.law.missouri.edu/jdr/vol2019/iss2/10