A typical settlement for claims of sexual harassment in the workplace can contain numerous provisions. Along with providing compensation to the victim, the company may agree to reinstate the employee, if she or he was terminated, or to transfer the employee or the harasser to a new department or location. The employer may also describe steps that it will take to ensure that the behavior is not repeated, such as improved reporting procedures and sexual harassment training. In response, the employer may require the employee to sign a nondisclosure agreement (NDA), which prohibits the employee from discussing her or his experiences as well as the terms of the settlement agreement.
Confidentiality provisions have received scrutiny in the wake of continuing claims of rampant sexual harassment in a variety of industries.
Lawmakers introduce bill to bar NDAs in sexual harassment settlements
Last month, New York state senators introduced a bill that would prevent companies from including NDAs in settlements involving sexual harassment. One of the co-sponsors of the bill represents a district that includes a residence of Harvey Weinstein, the media mogul who has been accused of inappropriate sexual behavior by more than 60 actresses and models.
Brad Hoylman, the co-sponsor, originally drafted the legislation after several Fox News employees made allegations of sexual harassment against Roger Ailes, the late chairman of the company. Mr. Hoylman later modified the language of the bill after Weinstein’s behavior became public knowledge.
According to reports, Weinstein’s harassing behavior was a well-known secret. Yet, the inclusion of NDAs in settlement agreements with victims played a large role in keeping the allegations from the public spotlight.
Hoylman believes his bill could help victims come forward and prevent repeat offenses by serial harassers.
What is best for victims?
The state legislature will reconvene in January, at which time the bill will be open for debate. The final language of the bill is not yet settled, and many politicians have withheld opinions on it, including New York Gov. Andrew Cuomo.
Some argue that such a bill would make it more difficult for victims of sexual harassment to reach settlement agreements, since employers would have less incentive to settle and trials can be difficult for victims to win. This would be difficult for some employees, who may prefer to settle their claims for any number of reasons, even if the settlement includes a nondisclosure agreement. However, proponents of the bill argue that the legislation may not deter companies from settling sexual harassment claims, and would make it easier for victims to come forward.
Workers’ rights advocates and employers alike should follow the bill to see whether this significant proposal becomes law.