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Non-disclosure agreements promote silence

Posted on 10.10.2018

Time Magazine named the Silence Breakers, or the numerous celebrities speaking out against rampant and unchecked sexual harassment, person of the year in December 2017. Nearly a year later, the list of those who have been accused of sexual harassment or other misconduct continues to expand, and seemingly no powerful individual is exempt from the determined force that became the #MeToo movement. However, this endless maze of sexual harassment scandals is indicative of a deeper problem than people who can’t conceptualize boundaries.

While the conversations started by #MeToo have been a significant first step forward, vilifying the harasser is not enough; rather, attention must be drawn to the legal tool that has kept many survivors silent to begin with: non disclosure agreements. A non-disclosure agreement is a contract that creates a legal obligation of privacy and compels those involved to keep specified information confidential. Once an important facet of keeping company secrets hidden from the public, NDAs are now being used to silence harassment victims, conceal crime, and prevent speaking out against corporate culture. Essentially, according to the article “Contracts of Silence” in the Columbia Journalism Review, the reason why both harassers and corporations feel their bad behaviors won’t be exposed to the public is because these NDAs ensure a “contract of silence” for survivors, employees and journalists alike.

There are two major problems concerning NDAs. The first is that they encourage the silencing of survivors, allowing a wrongdoer, if rich and powerful enough, to effectively buy the silence of the wronged. The primary enforcement mechanism for a NDA is a requirement that forces the claimant to pay back the entire settlement, and often a woman who is brave enough to file a claim can’t afford to pay the price. One example of this is Olympic gymnast McKayla Maroney. According to NBC, Maroney signed an NDA with USA Gymnastics that, if enforced, would have resulted in a $100,000 fine were she to testify against abuser Larry Nassar. With an NDA, keeping silent is largely considered necessary in order to avoid hefty financial penalties, and while numerous celebrities stepped up and offered monetary support for Maroney, the same cannot be said for the everyday working survivors of sexual harassment. For these women, every dollar makes a difference, and so the threat of losing money would be enough to buy their silence.

The second problem involves concealing various crimes and misdeeds. According to the previously mentioned article in the Columbia Journalism Review, NDAs have pervaded the business landscape, shielding misdeeds from public view. One example of this is featured in the film “The Insider”. NPR’s Planet Money podcast, on April 6, delved into this topic by telling the story of Jeffrey Wigand. Wigand, a biochemist and former vice president of research and development at a large tobacco company, had signed an NDA as part of severance negotiations. Afterwards, he began to work with 60 Minutes to expose the industry’s efforts to conceal research on the harmful effects of smoking.

However, CBS became afraid it would be sued for “tortuous interference” with Wigand’s NDA, and suppressed Wigand’s interview for months. Furthermore, according to the Columbia Journalism Review, NDAs also have been used to quiet plaintiffs who have suffered harm from an environmental hazard and “have been said to play a role in concealing, among other things, the dangers of silicone breast implants and… toxic-waste leaks into rivers across America.”

Obviously, NDAs should not be disposed of entirely, as they were useful in their initial business purposes. This does not, however, mean they cannot be modified. Some states are in favor of a middle ground.

According to an article from NBC, California is one such state, prohibiting NDAs “when the facts of the claim could be charged in a criminal proceeding.” Aside from this, bills such as the EMPOWER Act may also help the cause. According to Vox, EMPOWER would outlaw NDAs when it comes to claims of workplace harassment and require companies to disclose the number of harassment claims it settled each year and the amount paid out. NBC notes that legally we may not be able to draw a perfect line. But as law professor Jessica Levinson writes, “That doesn’t mean we shouldn’t draw a line at all.”

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