How Confidentiality Provisions in Sexual Harassment Settlements Can Benefit Employees

In recent months, following a string of high-profile sexual harassment scandals, a national debate has ignited over whether confidentiality provisions in sexual harassment settlements should be permitted under law. Various media outlets argue that such provisions "silence" women, and should be made unlawful. Moreover, legislators in states including California and New York have proposed laws that would prohibit the use of confidentiality provisions in sexual harassment settlements.

Confidential Sexual Harassment Settlements Give the Harassed Employee Leverage

Most of these commentators lack an intimate understanding of the legal context in which victims of harassment enter into these agreements. Many issues influence an employer's decision to enter into a settlement to avoid litigation; potential liability is only one of them. As a practical matter, the promise of confidentiality and the prevention of negative publicity is often the greatest incentive an employer has to provide a victim with a high-dollar settlement. If confidentiality provisions were made unlawful, there would be little incentive left for the employer to settle in advance of trial. Bringing a case to trial can cost hundreds of thousands of dollars. Generally, the employer is in a position to pay for this, and the victim is not. Moreover, sexual harassment claims are heavily fact-based, and often difficult to prove. In most cases, without assurances of confidentiality, potential defendants with more resources are willing to roll the dice and go to trial, and will do everything in their power to out-resource the victim in the process. Thus, the victim's critical point of leverage is her agreement to refrain from publicizing the facts at issue. Without this, she might be left with no monetary settlement to fall back on as she searches for new employment. Alternatively, the victim might avoid a settlement agreement altogether, and seek media attention on her case. But that is her choice to make.

Confidential Sexual Harassment Settlements Can Help the Harassed Employee Find a New Job

Not only are confidentiality provisions generally required as a practical matter, but they are often desired by the victim. Well-crafted settlement agreements include contractual assurances as to what the employer may or may not say when contacted for references about the victim, as well as mutual non-disparagement provisions that prevent the employer from denigrating or criticizing the victim. Such provisions offer critical protections to victims who are seeking new employment. This protection is particularly important in closed industries and the political and media spheres, where "breaking into 'the business' " is difficult for women, and a negative reference from an employer could lead to being "blackballed" from the entire industry.

Confidential Sexual Harassment Settlements Can Protect the Harassed Employee from Further Trauma

Moreover, for many victims, unlawful sexual harassment leads to extreme emotional pain. Victims can experience any number of emotions as they cope with harassment, including shame, anxiety, humiliation, and fear. Many victims do not wish to re-live these emotions in the public eye, and therefore desire that the facts underlying their settlement agreements remain confidential between the parties. Also, as a general rule, the perpetrator of the harassment at issue is in a position of power, with greater resources to launch a media campaign against the victim. Barring confidentiality provisions in sexual harassment settlements could open the door for a "he said, she said" media spectacle that would traumatize the victim a second time. The revelations of how Harvey Weinstein, a powerful male producer, silenced his victims and manipulated the media for many years is a cautionary tale for any individual woman taking on a powerful man alone. It took the collective allegations of over eighty women, many of whom are well-known actresses, to finally bring him down. And this doesn't even begin to address the struggles faced by low-wage workers who have been sexually harassed. These women lack access to the media, resources to litigate, and other job opportunities. A large monetary settlement is typically the best solution for women in these situations.

Confidentiality provisions provide victims with contractual assurances that they can move on with their lives following their traumatic experiences. The victim, and not the government, should make the ultimate decision as to whether agreeing to a confidentiality clause is in her best interest.

As a matter of law, confidentiality provisions do not stop a victim from complying with subpoenas to testify in other legal matters involving the perpetrator; nor do they prevent a party from cooperating with law enforcement in any investigation of criminal conduct. These limitations mitigate the risk to the public imposed by the use of confidentiality provisions by allowing for the victim's story to be used as evidence in other cases.

Targets of Sexual Harassment Should Not Be Forced to Endure Public Victim-Blaming

Bottom-line: The burden should not be on the victims to reform the system and endure public victim-blaming. Rather, that responsibility should lie with the employer to ensure a safe work environment, and to implement an effective reporting system to identify sexual predators and root them out. Only when employers engage in systemic change will the widespread problem of sexual harassment in the workplace finally be combated effectively. Lawmakers should therefore focus on creating legislation that will require employers to do more to educate their employees about harassment, to take disciplinary action against known predators, and to protect employees who report harassment against retaliation.

By  Lynne Bernabei & Devin Wrigley