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Why silence after sexual harassment? Nondisclosure agreements.

by | Oct 30, 2017 | Sexual Harassment


Why do women remain silent after experiencing sexual harassment in the workplace? One reason is that companies sometimes settle the matter privately in exchange for a nondisclosure agreement.

As we discussed in our previous post, some sexual harassment victims remain silent due to a well-grounded fear of retaliation. In many cases, victims are given a false choice between signing a secret cash settlement and suffering retribution.

Nondisclosure agreements (NDAs) used for this purpose seek to prevent the victim from discussing anything related to the wrongdoing with virtually any third party.

NDAs can be used to allow toxic bosses and colleagues to remain employed despite serious accusations of sexual misconduct. They are used to ensure the allegations remain nothing more than office gossip. They are used to protect both the perpetrator and the company from any further legal consequences.

What happens if you violate a nondisclosure agreement?

NDAs are not always legally enforceable. Even assuming one is, it’s not criminal to break one; it’s breach of contract. Violations may result in anything from a threatening letter to a lawsuit. The lawsuit may seek specific “liquidated” damages listed in the agreement, which may be high. It’s unlikely, however, that a court would require you to give back the settlement money or the equivalent.

Not every breach will result in litigation, however. As you may know, actor Rose McGowan settled a sexual assault case with Harvey Weinstein in 1997. That settlement included an NDA, which McGowan apparently obeyed for 20 years until the allegations against Weinstein this year. She has come forward with her story, and it seems unlikely that Weinstein or his former employers will sue.

It’s important to note that you can still file a sexual harassment complaint with the Equal Employment Opportunity Commission after signing an NDA. A court recently dismissed a case in which CVS Health Corp. attempted to prohibit communication with the EEOC through an NDA in its severance agreements.

Moreover, some legal scholars say that NDAs are not or should not be enforceable when used to cover up criminal behavior.

“It should be a question of whether all of this is enforceable for public policy reasons,” says a labor and employment law professor at the University of San Diego.

Should you sign a settlement with an NDA?

If you have been sexually harassed and your company has offered to settle with you, they may wish to include a nondisclosure agreement. Should you sign?

Not without discussing it with an attorney first. Settlements and NDAs are legal documents that may limit your rights — or appear to. Your lawyer can ensure you understand all of your rights.

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