How Non-Disclosure Agreements Work To Silence Sexual Assault Victims & Why States Want To Change That
When it comes to sexual harassment and assault, the reasons for women staying quiet are plentiful. But one of the most pernicious causes for silence is what's known as a non-disclosure agreement, or an NDA. These contractual clauses prevent women from speaking about their experiences to anyone, and carry the threat of legal recourse should they choose to do so. But in California, New Jersey, and New York, state legislators are working to change non-disclosure clauses in employee contracts and court settlements. If their efforts are successful, they would open the door for otherwise silenced women to speak about their harassment or assault.
In New York, State Sen. Brad Hoylman has introduced legislation that would void any language in a contract that prevents employees from speaking out about harassment or discrimination. Hoylman tells Bustle he's not too worried about pushback from the business community. "I don't think employers want to risk protecting predators in the workplace, even if it's the CEO in the corner office," Hoylman says.
"Look how it's destroyed one of the most successful film studios in history," he adds, pointing to the allegations against Harvey Weinstein. (Weinstein has denied all accusations of non-consensual sex.)
But it wasn't the Weinstein case that spurred Hoylman's legislation. The senator's bill to limit the reach of non-disclosure clauses was actually prompted in the wake of another bombshell sexual harassment scandal. Hoylman says:
I introduced my legislation earlier this year in the wake of Gretchen Carlson's experience at Fox News, which is headquartered in my district. NDAs mean an employer can cover up the misdeeds of predators and subvert the legal rights of employees. In the end, it's the employee who gets fired, not the predator, who's now free to continue to prey on new victims.
Hoylman's colleague in the New York State Assembly, Nily Rozic, is working on similar legislation to bring forward in her chamber.
In California, state Sen. Connie Leyva is hoping to address the problem she sees in out-of-court settlements that require NDAs. Leyva is working on a bill that would ban non-disclosure clauses from settlements in cases involving sexual harassment or assault. Speaking with CNN Money, Leyva said that after these types of arrangements, "women can't communicate to each other — to anyone. They have to stay quiet about what happened to them. Not only does this affect their healing, but they can't protect other women."
Other state representatives are working on legislation addressing a related issue — contractual non-disclosure clauses that employees sometimes must sign before a company will hire them.
And in New Jersey, State Senator Loretta Weinberg is working with Assemblyman Jon Bramnick on legislation to do the same as Hoylman and Rezic's — prevent employee contracts from legally binding workers into silence about harassment and assault. It's a bipartisan effort, with Democrat Weinberg and Republican Bramnick agreeing that employers don't have the right to keep victims silent.
For anyone following the recent allegations against Weinstein, the issue of non-disclosure agreements attached to settlements will probably not be unfamiliar.
"I want to publicly break my non-disclosure," said Zelda Perkins to the Financial Times in a story published on Oct. 23. Perkins is Weinstein's former assistant, and she reached a settlement with the Hollywood producer 19 years ago — a settlement that included an NDA. Perkins alleged that she had been sexually harassed by Weinstein for years, but she is particularly adamant that people understand how non-disclosure clauses are a powerful weapon used against victims.
Perkins told the Financial Times:
Unless somebody does this there won’t be a debate about how egregious these agreements are and the amount of duress that victims are put under. My entire world fell in because I thought the law was there to protect those who abided by it. I discovered that it had nothing to do with right and wrong and everything to do with money and power.
Perkins quit working for Weinstein in 1998 at the age of 24. She'd been sexually harassed by him on a number of occasions, many of which mirror other allegations. According to Perkins, Weinstein allegedly offered her a massage in his hotel room, walked around naked in front of her on several occasions, and sometimes tried to pull her into bed with him on occasions when she would have to wake him up in the mornings. In a statement to FT, a Weinstein spokesperson said, “The FT did not provide the identity of any individuals making these assertions. Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein. Mr. Weinstein has further confirmed that there were never any acts of retaliation against any women for refusing his advances.”
For Perkins, the legal rigamarole involved in signing her NDA was harrowing. She reportedly sat with lawyers for hours on end, one meeting ending at 5 a.m. Perkins said she insisted her coming forward was not about money — that she reportedly had been jolted out of inaction by Weinstein's mistreatment of a female colleague, and that she wanted forced therapy for Weinstein, and better Human Resources at Miramax. It kept Perkins from speaking out.
The same was true for actress Rose McGowan. She reportedly reached a settlement with Weinstein in 1997, and has not openly talked about what happened in an "incident" in a hotel room. But McGowan has used her Twitter feed in recent weeks to claim that Weinstein allegedly raped her. Many suspect an NDA has kept McGowan from openly stating that for years. Weinstein has denied all allegations of non-consensual sex.
Deborah Rhode, a law professor at Stanford University, told Bustle she does expect pushback from the business community on legislation restricting settlements in sexual harassment and assault cases.
"It will make achieving settlements more difficult and more humiliating," Rhode said. "From the parties’ standpoint, this will not be a desirable outcome. But from society’s standpoint, it will be extremely desirable — it will substantially increase the risks for serial abusers like Weinstein and O’ Reilly if they cannot buy their way out of trouble, and this deterrent effect will make for less abusive workplace cultures and more prevention of future misconduct."
If the efforts of state legislators in California, New Jersey, and New York are successful, situations like the one Perkins and many other women found themselves in may be avoided in the future.