Hemel: Should Weinstein-shielding Confidentiality Agreements Be Legal?

Confidentiality Agreements Shielded Harvey Weinstein for Years. Should They Be Legal?

According to an explosive New York Times exposé, Hollywood producer Harvey Weinstein has been sexually harassing female employees and actors for decades — and has used nondisclosure agreements and confidential settlements to cover up his behavior.

Employees of Weinstein’s company are required to sign agreements promising not to make statements that could harm the reputation of the firm or its top executives, the Times reports. And when female employees have sued Weinstein for harassment, he and his company have generally settled the claims confidentially — pairing payments with a condition that the plaintiffs not talk about the details of their cases.

Is it — and should it be — legal for employers to use confidentiality provisions to keep harassment claims secret? The Weinstein scandal raises these questions in a particularly stark way, although such provisions have long been controversial.

Confidentiality clauses have featured in a number of high-profile sexual harassment scandals. In November 2011, Politico reported that Herman Cain, then running for the Republican presidential nomination, had been accused of sexual harassment by two women who worked with him when he ran the National Restaurant Association; Cain’s employer had settled the claims with agreements that forbade the women to speak about the incidents.

Venture capital firm Kleiner Perkins offered to settle former employee Ellen Pao’s sexual harassment suit only if — according to Pao’s account — she signed an agreement limiting her freedom to talk about her experience. (She dropped her suit but declined to settle, saying she did not want to be silenced.) Fox News Channel likewise used confidentiality clauses in contracts with employees to protect its late chief Roger Ailes from sexual harassment claims.

These cases, and others, have led many to ask whether the enforcement of confidentiality clauses serves primarily to protect sexual harassers, allowing them to continue their abuses.

Read more at Vox.com