The wave of sexual misconduct allegations made against dozens of powerful men in recent weeks is causing lawyers to rethink how they handle such cases, including the longstanding use of confidentiality agreements.
As more women, and sometimes men, speak out, settlement deals with non-disclosure agreements (NDAs) that bar victims from discussing past claims of harassment or abuse have come under fire, with many lawmakers and advocacy groups now arguing they should be abolished.
Lawyers who represent plaintiffs and defendants in harassment cases said they had previously assumed NDAs, which are rarely breached, would be upheld in court if challenged. But now there is a greater probability courts could void such agreements deeming them against the public interest.
“I’d be surprised to find a lawyer who is confident in the enforceability of an NDA right now,” says Ron Shechtman, head of the employment law practice at law firm Pryor Cashman, which represents employers.
Several lawyers said they are more likely now to recommend executives or other high-profile individuals facing misconduct claims step down rather than try to defend themselves or make the allegations go away. That has been the course chosen by several men in recent weeks.
But lawyers say weakening confidentiality could have consequences for accusers too. Settlements could be smaller without a promise of secrecy. Confidentiality agreements, at least in some cases, can also prevent men accused of misconduct from falsely characterizing claims against them.
Plaintiffs’ lawyers said that, moving forward, their advice may vary more depending on their clients’ goals. Some may want to go public so harassers cannot claim new victims, said New York lawyer Douglas Wigdor. Others, however, “want confidentiality just as much as the person who harassed them.”
Such agreements only come about when an accuser has made or threatened a legal claim over misconduct allegations. Many of the women now publicly giving their accounts have not sued and have no plans to do so.
Critics of non-disclosure agreements say they enable serial harassers by keeping other people who work for or with them in the dark about their behavior. Lawmakers in New York, California, Pennsylvania and New Jersey have proposed banning non-disclosure agreements in sexual harassment and other employment-related cases.
Those proposals could gain momentum as more claims of harassment come to light. By now, millions of people have posted stories under the social media hashtag “Me Too.”
Prior NDAs have not necessarily stopped women from coming forward. Zelda Perkins, a former assistant to Hollywood producer Harvey Weinstein, said she violated such an agreement to publicly air harassment allegations against her former boss.
Weinstein has denied all allegations of non-consensual sex.