Updated: Jan 9, 2021
From the movie Bombshell:
Kayla Pospisil: Did you think what your silence would mean, for us, the rest of us? Megyn Kelly: Roger is not my fault. Kayla Pospisil: It would’ve been nice if somebody told us that he’s after more than legs. Megyn Kelly: It’s nobody’s job to protect you, Kayla. Kayla Pospisil: That’s all of our job. I don’t get you; you have power. Why are you still playing by old rules?
Does the public have a right to know the millions of dollars that Bill O’Reily, Roger Alies, Bill Cosby, or Harvey Weinstein paid to settle the harassment claims brought against them? Does the fact that they paid so much money to settle buy silence? Would knowing about the large settlements protect other women from harassment? In criminal cases, attorneys are always concerned about potential harm to the public. Should we have a similar concern in civil cases?
Our role as attorneys is essential. Even those of us representing sexual harassment victims need to take responsibility for helping silence these victims. And we need to stop doing it (unless we are directed to by our client, of course)!
For years, I have advised my clients that companies who pay money to settle cases require and expect silence. Sometimes, employers even require women to agree to liquidated damages if there is a violation of this “confidentiality clause.” The uglier the sexual harassment and the bigger the settlement, the bigger the penalty for revealing the terms of the settlement agreement. And these confidentiality clauses are typically drafted so that they never expire.
More recently, my clients and I have begun pushing back. I want to encourage all of you to do the same. States across the country are addressing bills to limit or eliminate non-disclosure agreements (“NDAs”) in sexual harassment cases. There is a bill in the Colorado legislature that, if passed, would significantly limit NDAs.
How did we get here?
The concern frequently expressed by employers is that disclosure of the settlement will cause an opening of the “flood gates.” The implication is that a number of other women will make up harassment claims if they know there is money in it for them; or worse yet, women who did not know they had a claim will be educated. The employer feels entitled to confidentiality if it pays to settle a case and this has been the norm.
Previously, women were conditioned by society to think we had somehow invited sexual harassment – maybe we were too friendly, we didn’t say “no” forcefully enough, our skirts were too short, we gave the wrong impression – the list goes on and on. Even when we actually stood up for ourselves and reported the harassment, we were taught that it would still be better if no one talked about it.
But there has been a significant generational shift, finally. Now, many women who know that they did nothing to “invite” the sexual harassment want to talk about the fact that they stood up for themselves, to tell their daughters and sons about what they did, and to strengthen the laws against workplace harassment. How does this change in attitude impact NDAs in sexual harassment cases? The answer depends in large part on the scope of the NDA.
There are three basic NDAs:
The blanket NDA. An agreement to not disclose the existence of the settlement, the terms of the settlement, and the facts leading up to the settlement.
The NDA that covers the fact of settlement and the terms of the settlement agreement, including the amount of the settlement.
The bare bone NDA. The settlement amount is protected but that is all.
All three of these NDAs typically have no expiration date and some come with hefty penalties for breach.
The irony is that none of these NDAs accomplish what the employers really want – total secrecy. Some defense attorneys even attempt to rewrite history by requiring victims to state that they told no one about their claims prior to the settlement. Victims cannot honestly agree to the revision of history and should not even be asked to – everyone confides in someone.
There is no one-size-fits-all NDA these days. It is incumbent upon those of us who represent victims of sexual harassment to ensure that if we agree to an NDA on our client’s behalf, we ensure that the NDA is designed to fit the needs and desires of our clients. We do not need to wait for legislation to pass. We can do it now!
Diane S. King is a partner in the Denver Colorado civil rights law firm of King & Greisen, LLP, where she practices exclusively in the area of plaintiff’s employment/civil rights law. Her practice area includes all aspects of employment law and civil rights litigation, primarily in the Federal Courts. She has successfully tried, arbitrated and mediated hundreds of employment cases. Ms. King is a frequent lecturer on employment law locally and nationally. She is a member of the National Employment Lawyers Association Executive Board, the Colorado Plaintiff Employment Lawyers Association Board, and numerous other professional boards. Ms. King is also a Fellow in the College of Labor and Employment Lawyers. Ms. King received her Juris Doctorate from the University of California at Berkeley.