But it’s not as clear whether confidentiality agreements could be enforced when sexual harassment is at issue. Many courts apply balancing tests to determine whether employees can provide evidence in open court against, for example, sexual harassers when doing so would otherwise violate confidentiality agreements with employers. Without the benefit of legal counsel, and when, as may turn out to be the case with some of the Weinstein allegations, sexual harassment does not rise to the level of criminal sexual assault, workers are right to be uncertain about what NDAs prohibit. That, along with the accompanying risk of getting fired, can discourage employees from speaking up.
Out-of-court settlements represent a second obstacle to transparency. In the vast majority of cases, settlement agreements resolving sexual harassment claims in exchange for monetary payments require that victims not speak publicly about the settlement’s terms or any details of the circumstances giving rise to the litigation. If, for example, women who have signed such agreements with Weinstein publicly disclose information covered by those agreements’ confidentiality provisions, they face a substantial risk of being sued for breaching them. Such a breach could cost them millions. (Some lawyers and legal experts have started questioning whether drafting such settlement provisions is ethical when they concern conduct such as sexual harassment, because it may constitute “conduct that is prejudicial to the administration of justice.” But there’s currently no legal sanction on lawyers for doing so.) Further, while the EEOC can strike down confidentiality provisions that restrict employees’ compliance with its investigations, there is no enforcement authority that, in the absence of a criminal case, can do so for agreements a firm or executive reaches with non-employees.
Given all this, workers who want to disclose confidential information protected by settlement agreements end up with limited options. However, if an alleged harasser publicly discloses or makes denials about the same information, then under confidentiality agreements that are mutually binding on both parties, the harasser could be sued for breach of contract and prevented from being able to in turn sue victims for the same. Herman Cain, for example, made himself vulnerable to a lawsuit when, during his presidential run in 2011, he derided women who went public with their sexual-harassment claims against him, rejected their allegations as false, and denied settlement amounts reached in litigation they brought. Further, when, as in the Weinstein case, the story is so explosive, suing alleged victims for a breach of confidentiality may be too costly in public-relations terms.
And third, most employment contracts contain arbitration provisions that move lawsuits from a public forum to a private, usually confidential, proceeding. The Supreme Court is currently considering whether such provisions violate federal law when they prevent employees from collectively pursuing claims, but the Court’s recent rulings in favor of arbitration suggest that they will likely survive legal challenge even under those circumstances. Still, some arbitration provisions only apply to claims against employers, not claims against individual executives. This means employees can sometimes bypass arbitration provisions and file sexual-harassment suits in court that would be subject to public scrutiny (though these are usually followed by quick resolutions through settlement, as in Carlson’s case against Fox’s Roger Ailes).