Harassment Scandals Shine Spotlight On Confidentiality Clauses

Oct 30, 2017
Originally published on October 30, 2017 6:42 am
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As allegations of sexual misconduct continue to come out against Hollywood producer Harvey Weinstein and many others, some are taking aim at the legal process that's helped keep their secrets for so long. While Weinstein has denied many of the allegations, the list of his accusers has grown to nearly 60. And many have reportedly signed confidentiality clauses to settle their claims. As NPR's Tovia Smith reports, some states are now looking to ban those kinds of secrecy pacts in cases of sexual misconduct.

TOVIA SMITH, HOST:

When a former assistant of Harvey Weinstein broke a hush clause in a settlement she says she signed with him, she told the Financial Times she wanted to out not only Weinstein but also the, quote, "egregious" secrecy pacts that have long gagged her and so many others, including Lisa Senecal.

LISA SENECAL: Unfortunately, because of the nondisclosure agreement that I'm under, there's very little that I'm able to say about the incident.

SMITH: Senecal, who works in marketing and serves on the Vermont Commission on Women, says after she was sexually assaulted by an executive she worked for, she signed a confidentiality clause that bars her from discussing what happened even with family.

SENECAL: It's incredibly frustrating. Part of healing for a lot of survivors is being able to talk to other survivors. So just that is very difficult.

CONNIE LEYVA: For me, in my mind, it just - I thought enough was enough. This just has to stop.

SMITH: California State Senator Connie Leyva is drafting legislation that would make secret settlements in cases of sexual assault or harassment illegal, as California has already done in cases of child abuse. Leyva says it's a matter of public safety.

LEYVA: Perpetrators should not be able to buy women's silence. The most important thing is that the perpetrator is named, that the company is named. You can run, but you can no longer hide.

SMITH: Similar legislation is in the works in New Jersey. And a New York proposal would ensure that even the strictest employment contracts could not stop employees from speaking up about sexual misconduct. But defense attorneys object. Dallas lawyer Lorin Subar says companies would be much less inclined to settle without confidentiality because of what he calls the bandwagon effect.

LORIN SUBAR: Harvey Weinstein becomes the poster child for that because it went from absolute silence to hey, you know what? That happened to me. Hey, that happened to me. And that does not mean that it didn't. But it certainly allows people to try to take advantage of a situation just because it's in the press.

SMITH: Subar has people have a right to enter into any contract they see fit, as long as it's legal. And he says confidentiality in settlements can be good for both sides.

SUBAR: They are clearly hush money. And that always sounds evil and always sounds bad. But, as we know, unfortunately, a lot of victims of sexual assault - it's embarrassing to them. So they don't have to air their dirty laundry in public, either.

SMITH: The stigma may be diminishing now as more women share their stories. Lisa Senecal says she'd probably worry less today about being shamed or professionally blacklisted than when she signed her secrecy clause. But it's a personal decision, she says. And it's still too soon to take away the option of confidentiality.

SENECAL: That would be making the decision for a woman - that if you are going to come forward, you are coming forward to the world. And I'm afraid that could have a chilling effect on women being willing to come forward.

SMITH: Some have suggested compromises like allowing secrecy only around the dollar amount of the settlement or just the name of the alleged victim. But calls for more transparency in one form or another are building, as activists wage war, as they've put it, not only on sexual misconduct but also on the silence surrounding it. Tovia Smith, NPR News. Transcript provided by NPR, Copyright NPR.