RETHINKING NONDISCLOSURE AGREEMENTS IN SEXUAL MISCONDUCT CASES.
TABLE OF CONTENTS INTRODUCTION I. The Significance of the Public Firing or Resignation of Powerful Men A. How the President Sets the Tone for the Cultural Climate on Abuses against Women B. The Harvey Weinstein Effect II. The Silencing Effect of Nondisclosure Agreements and Their Potential Illegality A. What is the Purpose of Nondisclosure Agreements? B. The Case For and Against Nondisclosure Agreements in Sexual Misconduct Claims: From the Victim's Perspective C. The Impact of Nondisclosure Agreements on Public Health and Safety D. Identifying the Arguably Illegal Uses of Nondisclosure Agreements in Sexual Misconduct Claims 1. Nondisclosure Agreements That May Be "Contrary to Public Policy" 2. Nondisclosure Agreements as "Unconscionable" Contracts 3. State Laws Prohibiting Nondisclosure Agreements in Sexual Misconduct Cases III. A Holistic Approach: Courts, Legislation, and Industries A. Courts 1. The Judiciary and Sexual Misconduct 2. Judicial Solutions B. Current Trends in Congressional Legislation C. Industry-Led Initiatives D. A Holistic Approach to Resolving the Use of Nondisclosure Agreements in Sexual Misconduct Cases CONCLUSION
"I better use some Tic Tacs just in case I start kissing her. You know I'm automatically attracted to beautiful. I just start kissing them. It's like a magnet. I just kiss. I don't even wait. And when you're a star they let you do it. You can do anything. Grab them by the p***y. You can do any thing...Oh, nice legs, huh?" (1)
The above is an excerpt from the now infamous 2005 conversation between Donald Trump and Billy Bush arriving to an Access Hollywood appointment with actress Arianne Zucker. The video was revealed during Mr. Trump's presidential campaign in 2016. When questioned about his position on his remarks, he reduced the lewd and braggadocious comments as 'locker room talk." (2) He is now the forty-fifth president of the United States of America, a notable position of leadership.
Biology Professor, Rama Shankar Singh, (3) claims that sexual violence is "part and parcel of masculinity" that is not encoded in DNA, but rather is taught within a patriarchal society that thrives on establishing socialized gender roles. (4) Singh further elaborates that patriarchy cannot be undone without altering the rules of gender relationships between men and women. (5) Amanda Taub, a journalist with the New York Times, remarks that not only is this type of mentality and behavior offensive, but it imposes real costs on women. (6) She argues that "the burden of avoiding and enduring sexual harassment and assault results, over time, in lost opportunities and less favorable outcomes for girls and women. It is effectively a sort of gender-specific tax that many women have no choice but to pay." (7) Nancy Leong, a law professor at the University of Denver who researches civil rights and identity issues, concurs, remarking, "I really do think of it as a tax on opportunity." (8) Professor Leong names this phenomenal societal issue as "identity work" and that for women, there is a cost/benefit analysis where women consciously or subconsciously balance the risks of participating in public life against professional opportunities, social connections, or plain old fun. (9) This is the gender-specific tax on opportunity that women pay for being an outsider in a male dominated world. She further elaborates that "for women, this identity work often requires navigating the minefields of sexual objectification, harassment and danger." (10) Where women must conduct a balancing test for almost everything she considers doing daily; men, on the other hand, may just seize the opportunity. (11)
This comment will focus on the opportunity costs assessed by the use of nondisclosure agreements (12)--legal tools that have been extensively used to silence women. (13) I contend that President Trump's 2005 comments ignited a larger national conversation (14) during his 2016 presidential campaign, encompassing the broader and taboo subject of violence against women. (15) On the one hand, the public commentary following the leaked video passed then-candidate Trump's statements through the filter of the old adage "boys will be boys," (16) and shoulder shrug, "that's how real men speak." (17) Alternatively, and more recently, a sector of society, primarily women and male allies, (18) have been framing this type of behavior differently: "[f]ar too many men treat women's bodies as if they are fair game for anyone who happens to encounter them." (19) More specifically when this is played out in the workplace, Nancy E. Smith, a partner with the Smith Mullin law firm claims precisely what lawyers in the employment sector have been verbalizing--essentially that when employees sign nondisclosure agreements as part of their employment contracts they "have to give up their constitutional right to speak freely about their experiences if they want to be part of the work force...[t]he silence sends a message: Men's jobs are more important than women's lives." (20)
As a result, this comment will argue that a nondisclosure agreement is a contract that enables sexual misconduct in the workplace and consequently should be prohibited in sexual misconduct cases, unless both parties mutually consent. (21) Part I will consider, despite the chronic use of nondisclosure agreements, how exposure of men in powerful positions has continued the debate on sexual misconduct in various industries, making the issue a front runner in the national debate for public policy changes around abuses against women. Part II examines the purpose and use of nondisclosure agreements and the impacts that nondisclosure agreements have on public health and safety and why in some circumstances nondisclosure agreements may be illegal. Finally, Part III posits a possible holistic approach that addresses the functionality of nondisclosure agreements and how they are construed by the courts, facilitated through legislation, and utilized in various industries.
I. THE SIGNIFICANCE OF THE PUBLIC FIRING OR RESIGNATION OF POWERFUL MEN
A. How the President Sets the Tone for the Cultural Climate on Abuses against Women
This comment further suggests that sexual misconduct has been enabled and accepted as a cultural norm by a patriarchal society(22) and has manifested, particularly in the workplace, into a public health and safety issue, which has put into place legal safeguards, whereby men are most notably protected by nondisclosure agreements ("NDA" or "NDAs"). However, it is important to begin with generally understanding the national context by which patriarchy leads to sexual misconduct.
Presidents have influential power over the national agenda. (23) In this case, it begins with the general notion that violence against women is culturally accepted and repercussions to such behavior are minimal; seemingly, that notion is now trending differently. For instance, Rob Porter(24) resigned as a top aide to President Trump (25) following allegations of abuse by two ex-wives. (26) This is just the most recent story of a powerful man spotlighted for abuse against women and either resigning or being fired for his transgressions. (27) However, the most troubling national repercussion from this story has been President Trump's response to these evidence-based allegations, which was to praise the work that Mr. Porter had contributed to the Trump Administration and wish him well in his future career endeavors. (28) What one did not hear was President Trump take the moment as an opportunity to take a stance against abuse and violence against women that can eventually lead to workplace sexual misconduct. (29) He made no mention of sympathy for the ex-wives or offer any empathy, indeed he never mentioned them at all, rather he made sure to note that Mr. Porter must be going through a tough time and that he had "said very strongly that he's innocent" and prodded us to remember that. (30) The very next day President Trump reinforced his sentiment with a tweet, again backing his support for Mr. Porter and other men who have recently been accused of violence against women, (31) including sexual misconduct and harassment in the workplace. (32) Once again, since President Trump's presidential campaign, his comments were at the center of the 'violence against women' debate and he seemed to further thrust the debate forward by siding with the accused, (33) in the process, undermining the women's allegations by giving weight and credence to the accused despite comparable evidence to the contrary. (34) Accordingly, President Trump has a history of defending men accused of sexual misconduct, while consistently labeling women bringing forward allegations as liars. (35)
The President is not alone in this type of rhetoric;(36) however, coming from the leader of the country it perpetuates misogyny and cements an ongoing and harmful attack on women, generally; but more specifically for women in the workplace. As the debate ensues NDAs are at the forefront of discussion. (37) People inside and outside of legal arenas are discussing whether NDAs should be allowed in circumstances that involve sexual misconduct. (38) However, when the President publicly sides with accusers of sexual misconduct, he is in essence condoning the socially accepted behavior by men and not supporting a legitimate national platform for women to speak and call out their harassers or abusers in the workplace. Despite the President's conduct, legislators throughout the country are responding by introducing bills that would combat this type of behavior and hold predators accountable to society. This will be discussed in Part II and III of this comment. Thus, the reality is that the President had and still has an opportunity in this moment of a cultural re-awakening and the #metoo(39) movement to use his platform to push forward a positive agenda and support legislation in finding long lasting, solutions to combat the overarching issue of violence against women, but specifically the issue of resolving sexual misconduct in the workplace.
B. The Harvey Weinstein Effect
On October 5, 2017, the New York Times(40) ran the pivotal story that would highlight a national epidemic throughout the country--the silencing of sexual misconduct, be it sexual harassment or sexual assault, toward the female workforce by powerful men via settlement agreements or NDAs. (41) The nondisclosure agreements referenced in this comment are contractual clauses integrated within settlement agreements that prevent women (or accusers) from speaking about their experience to anyone and carry the threat of legal ramifications if one chose to do so in the future. (42)
In an investigation by the New York Times, it was found that for over three decades, Harvey Weinstein, (43) a film producer, used his position of power to sexually abuse young women (non-employees) hoping to gain access to the film industry.. His tactics included luring them into his hotel room under "work" pretenses only to greet them fully naked, or requiring that they be present while he bathed or repeatedly asking for massages or initiating them himself. (44) Additionally, female employees were subject to unwanted physical contact or "regularly subjected to inappropriate requests or comment***." (45) In 2015, Lauren O'Connor, a literary scout and production executive for the Weinstein Company wrote a memo to several executives of the company indicating that "[t]here is a toxic environment for women at this company." (46) She stated that she was just starting out in her career and was fearful of ending her career or losing her job by speaking up, but that remaining silent on what she had witnessed was causing her much distress. (47) Eventually, after a meeting with the Weinstein Company board members and executives, Ms. O'Connor reached a settlement with the company as did at least eight other women between 1990 and 2015, on the condition of not disclosing any information as to the allegations. (48) To date there have been over eighty women who have come forward accusing Mr. Weinstein of sexual harassment, assault, coercion, and rape. (49)
Since the investigation, Mr. Weinstein's subsequent firing, and the resignation of "one third of the company's all-male board," (50) more prominent men, including politicians, legislators, judges, actors, industry leaders, and other public figures, have been accused of various forms of sexual misconduct, therein creating what some are calling the "Weinstein effect." (51) These are all white men in powerful positions publicly accused of some form of sexual misconduct, forced to either deny, apologize, resign, or accept the termination of their prestigious position. (52) This has shaken the souls of many men, who are now forced to reflect on their behaviors toward women, now that real repercussions seemingly exist--fear of losing their financial stability, their careers, their families, and their reputations.
Since Mr. Weinstein's public exposure almost every day another male has been accused of sexual misconduct usually by more than one woman. If one is to take anything positive from the "Weinstein effect" it would be the momentum of a cultural awakening about a national epidemic. As a result, given the current climate, not only is violence against women a nonpartisan issue, it a human rights issue that all politicians, the legislation, and the judiciary have an opportunity in this climate to acknowledge sexual misconduct at a national and political level. Furthermore, it is an opportunity to institute more scrutiny and advance strategies to end this national epidemic. For instance, recently, New York's attorney general, Eric T. Schneiderman, filed a lawsuit against the Weinstein Company right before the company was slated to be sold. (53) The lawsuit noted that "by guaranteeing the silence of victims and other employees through nondisclosure agreements, the company enabled Mr. Weinstein's 'unlawful conduct to continue far beyond the date, when, through reasonable diligence, it should have been stopped."' (54) To the degree that nondisclosure agreements have been used as a tool to silence victims of sexual misconduct, the question then becomes (and will be discussed in detail in Part II and Part III) should nondisclosure agreements even be honored or allowed, or should there be an outright ban or a more nuanced approach in cases that involve sexual misconduct?
II. THE SILENCING EFFECT OF NONDISCLOSURE AGREEMENTS AND THE POSSIBLE WAYS THEY ARE BEING USED ILLEGALLY
A. What Is the Purpose of Nondisclosure Agreements?
A nondisclosure agreement, (55) at its core "is a legally enforceable contract that creates a confidential relationship between a person who holds some kind of*** secret and a person to whom the secret will be disclosed." (56) Nondisclosure agreements in essence are a legal obligation to compel privacy and to keep a secret secured. (57) Nondisclosure agreements are often used in business settings because "they offer one of the most surefire ways to protect trade secrets and other confidential information (58) meant to be kept under wraps." (59) If the person who has signed the NDA breaches the contract, then the other party has a legal recourse and may sue for damages. (60) NDAs typically function in three ways: first, they serve as a safeguard for confidential information. In this way, those participating in the agreement sign on to agree that they will not release information. (61) Second, it may aide inventors with their patent rights. (62) A third use is when an NDA expressly outlines and classifies information that is exclusive and confidential from information that is not. (63) Consequently, any information may be covered by an NDA, as long as the document contains clear parameters including "definitions and exclusions of confidential information; obligations from all involved people or parties; and time periods." (64) Thus, absent any contract defenses, (65) an NDA is a legally binding contract.
There are typically two ways one would engage in nondisclosure agreements. First, as a pre-employment condition; basically a requirement to gain employment with a specific employer. (66) However, it is important to distinguish that if the pre-employment agreement includes an arbitration clause where the employee agrees to arbitration of any employer-employee dispute, including sexual misconduct claims, then the Federal Arbitration Act (FAA) will govern that agreement and courts generally do not have jurisdiction. (67) Second, via a settlement agreement, where nondisclosure of specific information becomes part of a bargain or settlement. (68) Unlike the first option, this second option is not exclusive to the employer-employee relationship, thus anyone (69) who has a "secret," usually detrimental to the business, may be involved in the bargain or settlement. This comment will largely focus on the latter.
B. The Case For and Against Nondisclosure Agreements in Sexual Misconduct Cases: From the Victim's Perspective
Largely, nondisclosure agreements that involve sexual misconduct are beneficial for the company because they have bargained for the victim's silence; thus, the sexual misconduct is kept hidden from the public and the company does not need to address the issue publicly. (70) However, from the victim's perspective, one benefit of nondisclosure agreements that involve sexual misconduct is the protection of unwanted negative attention or retaliation. (71) Thus, some victims or survivors willingly enter into nondisclosure agreements. Another issue is that payout amounts may decline if silence is no longer a benefit of settling a claim. (72) As a result, "[t]hese concerns may urge a more nuanced approach to the use of NDAs [nondisclosure agreements] in these types of claims rather than a complete ban." (73)
On the other hand, there are disadvantages in permitting nondisclosure agreements in sexual misconduct claims. First, the success of women in the workplace is placed in jeopardy. (74) Nondisclosure agreements used in sexual misconduct claims, in essence, sanctions behaviors that endanger the well-being and success of women generally, particularly in the workplace. When women are subjugated to a sexually hostile work environment, they are placed in a dangerous, unstable, and unjust situation. The cost women pay for being a woman in a workplace dominated by a work culture that maintains a sexually hostile work environment may trigger not only feelings of discomfort or past trauma, but mediocre work production which may lead to a lack of promotion or growth within the company. Second, nondisclosure agreements in sexual misconduct claims allow the perpetrator to escape the justice system. (75) The perpetrator therefore has authority to continue his predation, while still being allowed to keep his job, and his career remains intact. Third, it allows the concealment of sexual predators from law enforcement and the public. (76) Thus, when sexual predators are not reported the public is placed in jeopardy. It is counter-intuitive to protect the public from sexual predation when mechanisms, like nondisclosure agreements, shield predators from exposure. As a result, the question becomes how to balance the benefits that may aid some victims of sexual misconduct in the workplace, with the serious consequences that women and the public incur if nondisclosure agreements in sexual misconduct claims are not banned.
NDAs may be seen as a double-edged sword, therefore in the case of sexual misconduct, it is imperative to understand that there is a balancing that must occur--on the one hand balancing the privacy and potential settlement amount for victims; and on the other, creating an avenue for those who wish to be heard without legal repercussions. This comment will argue however that NDAs should be banned in sexual misconduct cases, unless both parties mutually consent, because they enable sexual misconduct to persist in the workplace leading to public health and safety concerns. As a result, this comment suggests that a holistic approach involving public policy changes supported by the courts, state and federal legislation, and industry-led initiatives would be the most effective route toward resolving the issue and in furthering the current shift in cultural consciousness and discourse on violence against women, generally, but more specifically for women in the workplace.
C. The Impact of Nondisclosure Agreements on Public Health and Safety
The force with which women have been calling out men for harassment, abuse, and violence against women has not come without controversy on many levels. The President has used the moment and his platform to address the issue by defending the men accused of sexual misconduct, while denigrating the women. There are those that argue what is seemingly the President's perspective wherein he noted that mens 'lives are being shattered and destroyed by a mere allegation" and "due process" is needed before essentially charging someone with an offense. (77) While the President has evidently chosen a "side" of the debate and illustrates a valid argument; likewise allegations backed with evidence from multiple victims claiming sexual misconduct by a particular individual is a compelling argument that necessitates investigation, their voices should not be castigated nor silenced.
This tension in our culture is an indicator that our social equilibrium is off balance, especially when one in three women are sexually harassed in the workplace. (78) Therefore, exploring the use of nondisclosure agreements and its role in society in the context of sexual misconduct claims is a step in not only addressing the larger issue of violence against women, but of addressing the necessity of exposing the related issues impacting public health and safety.
D. Identifying Potential Illegal Uses of Nondisclosure Agreements in Sexual Misconduct Cases(79)
1. Nondisclosure Agreements that May be "Contrary to Public Policy"
In Equal Employment Opportunity Comm'n v. Astra USA, Inc., (80) (Astra) a district court in Massachusetts issued a preliminary injunction enjoining an employer from "entering into or enforcing settlement agreements containing provisions that prohibit settling employees both from filing charges of sexual harassment with the Equal Employment Opportunity Commission ("EEOC") and from assisting the [EEOC] in its investigation of any such charges." (81) On appeal, the First Circuit affirmed the preliminary injunction as to the non-assistance provisions of the agreement and vacated the portion enjoining Astra from entering into or enforcing non-filing covenants in connection with those agreements. (82)
In this case, the EEOC was investigating three sexual harassment charges alleged against Astra. (83) However, during the course of the EEOC's investigation it "found its investigation hampered by certain settlement agreements entered into between Astra and sundry employees who theretofore had pursued sexual harassment claims." (84) One employee who affirmed that she had relevant information, but was not able to disclose the information due to a confidential settlement agreement that she had entered into with Astra. (85) Other evidence includes that out of the ninety employees whom the EEOC contacted to request information, only twenty six replied, and one reluctantly would not confirm whether she had entered into a settlement agreement with Astra. (86)
Furthermore, the record showed that "Astra had entered into at least eleven settlement agreements***with employees who claimed to have been subjected to, or to have witnessed, sexual harassment." (87) All settlement agreements contained four conditions, namely that the settling employee would not file a charge with the EEOC; that she would not assist others who file charges with the EEOC; that she release all employment-related claims against Astra and anyone in connection with Astra; and that she "assent to a confidentiality regime under which she is barred from discussing the incident(s) that gave rise to her claim and from disclosing the terms of her settlement agreement." (88) As a result, the EEOC asked Astra to rescind those conditions that prohibited the employees from filing complaints. (89) Astra declined.
On appeal, the court, in determining whether the district court erred in finding a significant risk of irreparable harm, it first explored whether the "non-assistance agreement" was void against public policy. (90) It applied a balancing test, weighing the employer's interest in dispute resolution against the public interest in enforcing laws against sexual harassment, such as Title VII. (91) The court stated that Congress had clearly delegated to the EEOC the task of fulfilling the core purposes of Title VII and therefore "it is crucial that the Commission's ability to investigate charges of systematic discrimination not be impaired." (92) As a result, the court found that enforcing the non-assistance provisions would seriously hinder the EEOC's enforcement of laws against sexual harassment. (93) Subsequently, the court held that as a matter of public policy "non-assistance" provisions in settlement agreements "which prohibit communication with the EEOC are void as against public policy." (94) Thus, this portion of the preliminary injunction was affirmed.
Next, the First Circuit did not find that irreparable harm existed in the provision that banned employees from filing charges with the EEOC. The court reasoned that "once an injunction issues prohibiting Astra from enforcing the non-assistance covenants, this case offers no prospect of irreparable harm to the EEOC." (95) Moreover, the court mentioned that there was "sparse evidence contained in [the] record, to attempt to confront the thorny question of whether agreements not to file charges with the EEOC are void against public policy." (96) The court articulated that the lack of hard evidence that "anyone who signed a settlement agreement with Astra now seeks to press charges with the EEOC which, if filed, would expand the investigations' scope***is unwarranted." (97) However, if it turned out that the situation did exist, they could renew for an injunction at that point. (98) Thus, this portion of the preliminary injunction was vacated.
Astra highlights that sexual harassment is a sufficient public policy issue that if applied to a balancing test, as in a preliminary injunction, would balance in favor of overriding the nondisclosure agreement, confidentiality agreement, or non-assistance agreement. Title VII made sexual harassment a public interest issue, and the First Circuit affirmed the notion that would tip in favor of claimants for sexual harassment claims, at least if brought through the EEOC. Therefore, as sexual harassment qualifies as a public policy issue, NDAs that prohibit employees from disclosing information related to a sexual harassment claim, particularly if the EEOC is investigating the matter, may be unlawful as a matter of public policy. (99)
2. Nondisclosure Agreements as "Unconscionable" Contracts
Nondisclosure agreements are contracts by nature, and generally absent contract defenses such as unconscionability, courts will honor the freedom of contracting. (100) However, a survivor of sexual misconduct, and to some extent an employee even if bound by an arbitration agreement, may be able to use this legal option. (101) For a court to find that a nondisclosure agreement has an unconscionable term and therefore may be unenforceable there must be both a procedural and a substantive component present. (102) Additionally, the evaluation of both components rests on a sort of "sliding scale," meaning both components need not be present to the same degree. (103)
Procedural unconscionability, "focuses on the circumstances surrounding the negotiation of the contract." (104) It arises from "oppression and surprise." (105) Oppression occurs when there is an inequality of bargaining power resulting in no real negotiation and an absence of meaningful choice. (106) Furthermore, if the contract is one of adhesion--"one in which there was an inequality of bargaining power denying the weaker party the opportunity to negotiate the terms of the contract," (107) then an element of oppression may exist. Additionally, surprise "involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms." (108)
A finding of substantive unconscionability within an "arbitration provision focuses on discerning overly harsh or one-sided results." (109) Basically, there is a spotlight on the "terms of the agreement and whether those terms are so one-sided as to shock the conscience." (110) For example, if a provision in the nondisclosure agreement silences the survivor, but allows the employer to insult or defame the survivor than a court may consider that provision one-sided. (111)
If a court found that either the nondisclosure agreement in general or a provision within the nondisclosure agreement is unconscionable then the NDA or the provision becomes unenforceable and the survivor (or employee) would no longer be confined to the agreement or provision.
3. State Laws Prohibiting Nondisclosure Agreements in Sexual Misconduct Cases
The application and interpretation of contract law, including confidentiality provisions or nondisclosure agreements differs, from state to state, as contracts are governed by state law. (112) Therefore, state legislatures play a major role in changing the landscape in addressing nondisclosure agreements in sexual misconduct cases. However, State laws are limiting because State laws banning or voiding nondisclosure agreements in sexual misconduct cases will only work for survivors or employees who are not bound by arbitration clauses. (113) If an employee has signed an arbitration agreement, before or during their employment, their sexual misconduct claim will be preempted by the FAA. (114)
Those survivors or employees not bound by arbitration agreements may take advantage of state laws that are pushing forward legislation that ban nondisclosure agreements in sexual misconduct cases. This comment will discuss California, New York, and New Jersey(115)--states that are working to challenge nondisclosure agreements in employee contracts and court settlements that involve misconduct claims. (116) The EEOC reported that in 2017 it received approximately 27,000 sexual harassment complaints. (117) Moreover, Newsweek reports that three in four people do not report sexual harassment for fear of retaliation. (118) Therefore, if these state legislative efforts are successful, it could not only change state public policy concerning nondisclosure agreements in sexual misconduct cases, but also present a strong case for federal legislation to follow and begin instituting federal laws concerning the issue.
In 2017, California became the first state to make efforts toward addressing nondisclosure agreements that prevent the disclosure of factual information related to a sexual misconduct act by banning them in "civil cases that could be prosecuted as felony sex crimes." (119)
Moreover, California State Senator Connie Leyva (120) stated that "[b]ecause of secret settlements, perpetrators are largely free to commit the same offenses" (121) time and time again. As a result, she plans to introduce legislation to "ban secret nondisclosure agreements in sexual misconduct cases." (122) Senator Leyva, a first-term senator, like many legislators, have identified secret nondisclosure agreements as a public safety concern because they permit perpetrators who are in a financially viable situation to pay the cost of the settlements, this bill, however, will ensure that those individuals will be held accountable for their behavior and ideally prevent them from victimizing other people. (123) Additionally, she identified a public health concern; she claims that since women are not allowed to communicate with each other, or anyone, for that matter, their healing and morality is affected because they are unable to protect other women. (124) Which may lead to health or mental health related issues. Thus, California has recognized that a public health and safety issue exists when nondisclosure agreements are used in sexual misconduct cases and the resolution is to ban them altogether. Therefore, a survivor or an employee not bound by an arbitration agreement may have a legal recourse in California.
In New York, State Senator Brad Holyman is co-sponsoring a bill with Assemblywoman Nily Rozic that would essentially rewrite an existing law. The new language would "void any contract provision where an employer can force an employee to keep quiet about sexual harassment and discrimination claims." (125) Particularly interesting is that this rewrite would include claims settled in arbitration. (126) However, the FAA would clearly preempt that portion of the law that included claims settled in arbitration. (127)
Another limiting aspect of the bill, which amends the New York's labor law, is that it only applies to employment contracts or agreements. (128) Thus, survivors of sexual misconduct would not be protected by the rewritten law. (129) Furthermore, while there has been some pushback from the business community on the new rewrite, Senator Holyman is not worried, stating "I don't think employers want to risk protecting predators in the workplace, even if it's the CEO in the corner office." (130) He pointed to the Harvey Weinstein scandal and the subsequent downfall of one of the most successful production studios. (131)
Despite some shortcomings, according to Ann Fromholz, (132) an employment lawyer, this bill has the capacity to "completely change the landscape of sexual harassment settlements." (133) First, though the actual dollar amount may not be revealed under the bill, employees would be able to talk about their experiences, something that cannot be done without legal repercussions under traditional nondisclosure agreements. (134) Second, it would empower employees to speak up with much less fear of retaliation. (135) Third, companies would benefit because when people are able to discuss their story of sexual misconduct, there is potential for the misconduct to decline, which makes the workplace a safer environment, resulting in less settlement payouts for companies. (136) Though New York is ready to take steps toward transparency in sexual misconduct claims for employees, it does fall short for those bound to arbitration agreements and survivors (non-employees) of sexual misconduct in the workplace.
In New Jersey, there is a bipartisan effort underway, which is important because it emphasizes that violence against women, including sexual misconduct, is not a partisan issue, rather a national issue. Democratic State Senator Loretta Weinberg is collaborating with Republican Assemblyman Jon Bramnick to introduce legislation similar to the New York bill, that would "ban nondisclosure agreements that seek to conceal the details of sexual harassment, assault, abuse or other misconduct in the workplace." (137) Senator Weinberg, like Senator Leyva, frames the issue as a public health and safety problem. She claims that her legislation bans nondisclosure agreements "related to life, safety, sexual harassment, assault and other misconduct. The intent is to prevent perpetrators from using these agreements to silence victims and to cover up offenses that they often end up committing again." (138) Both parties agree that employers do not have the right to silence victims, which is precisely the point of any type of nondisclosure agreement. (139) Thus, much like New York, New Jersey seemingly does not protect survivors, rather triggers protections for employees.
III. A HOLISTIC SOLUTION: COURTS, LEGISLATION, AND INDUSTRIES
1. The Judiciary and Sexual Misconduct
Our culture of pervasive violence against women, specifically sexual misconduct against women in the workplace has not escaped women working within the judicial system. (140) Ironically, a workplace that is supposed to protect the public and instill justice for our cities, states, and country can be for many women an unsafe work environment that is "closely controlled and cloaked in secrecy." (141) In fact, in our nation's courthouses, where judges police each other, women have faced abuses that go untold and it the "judiciary itself [that] is hiding the depth of the problem." (142) Complaints against judges are not made public, rarely are cases against judges thoroughly investigated, and the practice of public judicial orders generally do not reveal the accused judges' name or which corrective action took place; thus, these factors together, directly violates the public trust and could possibly contribute to a belief that the judiciary lacks credibility and is biased. (143)
For example, in the federal judiciary there are approximately 900 federal judges(144) who are appointed for life; if a claim were to be brought against them, it most likely would not be deeply investigated and if it did get to a level of serious investigation and referred to a special committee, a judge could simply retire, receive their full pension, and case closed. (145) The reason according to Professor Leong is that the insularity of the judiciary creates a dynamic of secrecy because judges do not want to take action against a colleague with the knowledge that they could work together in the future. (146)
Despite the judiciary's secrecy and lack of public disclosure of meritorious claims, a practice unnervingly similar to the secrecy associated with nondisclosure agreements, the real issue becomes whether judges who have the "authority to interpret law on sex-based offenses would use their attitudes toward women" (147) and sexual misconduct to inform their interpretation of the law.
2. Judicial Solutions
Consequently, since there is a level of secrecy within the judiciary and there is also an interest that the public be informed at least to the extent that the claims have merit, Supreme Court Chief Justice John Roberts announced, after Federal Judge Alex Kosinski(148) resigned, the creation of a new panel that would examine the sexual misconduct problem within the courts. (149) Chief Justice Roberts stated that in recent months "[e]vents have illuminated the depth of the problem of sexual harassment in the workplace, and events in the past weeks have made clear that the judicial branch is not immune." (150) As a result, as part of the examination federal courts have made a comment line open to current and former clerks about "how to improve internal policies relating to workplace conduct" and it will also track and report complaints involving sexual harassment. (151) Thus far, the working group tasked with this assignment reviewed the confidentiality provisions on the court website(152) and employee handbooks to make them more explicit that those provisions would not prohibit employees from coming forward to report sexual misconduct claims. (153) Additionally, judges and court employees will receive expanded sexual misconduct trainings. (154) Furthermore, the federal courts, separately "will begin tracking and reporting the number of complaints related to sexual harassment." (155) It would also be relevant to begin tracking any settlements containing nondisclosure agreements related to the federal court system and whether the judiciary has taken advantage of the legal tool to conceal their secrets, thus contributing to the overall problem and subsequent cover up.
The judiciary is beginning to address the issue of sexual misconduct in their workplace, which suggests that it will be years before any real change occurs in that environment, if any at all. Which is precisely why the courts must work in tandem with federal legislation and industry-led initiatives to resolve the extensive and pervasive problem of using nondisclosure agreements in sexual misconduct in the workplace.
B. Current Trend in Congressional Legislation
Federal legislative solutions could be the catalysts in changing the landscape of sexual misconduct cases largely because federal law is not preempted by the FAA. (156) Therefore, the breadth of protection levied by federal legislation would encompass and protect more people in the workplace. Especially, if federal legislation encompassed survivors or non-employees, where state laws did not. Thus, it is important that state legislators push their federal counterparts in proposing laws that ban nondisclosure agreements for sexual misconduct claims.
For instance, U.S. Senators Lindsey Graham (R-South Carolina) and Kirsten Gillibrand (D-New York) introduced bipartisan legislation to prevent sexual harassment in the workplace. (157) The Ending Forced Arbitration of Sexual Harassment Act of 2017 would 'Void forced arbitration agreements that prevent sexual harassment survivors from getting the justice they deserve." Basically, employers would not be able to mandate arbitration before a claim is brought forth. (158) Senator Graham recognized however, that if both parties consented to an arbitration agreement, it would constitute a different issue then mandating it from the onset, thus if an employee desired to arbitrate the claim, the legislation would not prevent them from doing so. (159) If the legislation passes, the proposed federal law would not be preempted by the FAA, (160) therefore, it would have an expansive protective reach for those desiring to bring a sexual misconduct claim against their employer.
Another such federal legislative effort is directed toward companies to combat the "corporate culture of secrecy," announced by Democratic House members(161) who introduced two new bills that would force companies to come to terms with their nondisclosure agreements. (162) The first proposed bill is the Ending Secrecy About Workplace Sexual Harassment Act which would require companies to report annually all settlements involving sexual harassment, assault and discrimination to the Equal Employment Opportunity Commission. (163) This bill takes aim at the nondisclosure agreements that employees are forced to sign in order to "win" settlements in workplace sexual harassment claims. (164) The intent is not only to expose companies, but to begin collecting data on sexual harassment in the workplace. (165) The requirement will aid in defining this extensive and pervasive problem and begin altering this toxic culture of behavior. This is significant because with a corporate culture of secrecy comes a lack of data which directly contributes to the concern for public health and safety. Thus, data collection to populate a public record is necessary so that companies can become transparent as to their contribution to sexual misconduct in society and what they are or are not doing to fight against that culture. Their accountability and transparency may thus improve public health and safety.
The second proposal was inspired by Bill O'Reilly's $25 million-dollar payment by Fox News after he was fired over sexual harassment allegations and is called No Tax Deductions for Sexual Harasser Buyouts Act which "would no longer allow companies to pay million-dollar severance to employees fired for sexual misconduct and then use those buyouts as a way to lower their own taxes." (166) As a result, companies might be more reluctant to compensate sexual predators for their transgressions, and would also be prevented from profiting by enabling the behavior. Thus, these bills are directly addressing the issue by pointing to company transparency and company finances, which has the equivalent effect of forcing companies to make internal changes to antiquated company policies, less they desire to be exposed as a company that enables or protects sexual misconduct.
Additionally, States are attempting to illustrate the breadth of the issue to encourage changes at the federal level. For instance, the California Senate is investigating procedures and policies related to sexual harassment complaints within the Senate, though pushback from activists and lobbyists assert that the investigation should be done by an independent third party. (167) Moreover, over 140 female legislators, staff, and lobbyists have signed a letter drawing attention to the issue of sexual harassment in the California Legislature, in order to highlight the "pervasive culture" that continues to "degrade and demean women." (168)
In addition, Governor John Bel Edwards' introduced Louisiana House Bill 578, a legislative package to combat sexual harassment, which prohibited employers from requiring employees to waive their rights to pursue sexual harassment charges and to handle them through arbitration, rather than in a court room. (169) Even though the bill did not pass at the 2018 session, it more than likely would have been preempted by the FAA. (170) However, similar legislation has been endorsed by state attorneys general like Jeff Landry at the federal level. Attorney General Landry "was one of several state attorneys general to sign a letter to congressional leadership urging the federal government essentially [to] do what Gov. Johnson [had] proposed at the state level." (171)
As a result, changes in federal legislation is essential in combating the secrecy of nondisclosure agreements, and to an extent arbitration clauses, in sexual misconduct cases because federal law is a higher authority than state law and it would not be preempted by the FAA. Therefore, federal legislation would have the broadest protection for victims of sexual misconduct in the workplace. Furthermore, state leaders must pressure the federal legislators in making nondisclosure agreements in sexual misconduct cases a prominent issue that requires federal legislative transformation.
C. Industry-Led Initiatives
According to a leading international consultant on establishing a positive workplace culture, Catherine Mattice Zendel, (172) for companies to avoid sexual misconduct allegations or lawsuits, a company must revamp its workplace culture from one of "workplace bullying," or workplace harassment to a positive workplace culture. (173) The practice directs leadership to live by their company's core values by example and by extension it will build a strong "see something, say something" culture, that communicates and addresses the company's intolerance for behavior that is not in line with company core values; even if the behavior itself may not be illegal per se, like bullying. (174) Additionally, managers should be held accountable for providing a positive work culture. (175) Finally, the practice reinforces and rewards those individuals who exemplify the company's core values and incorporates that process into how employees are evaluated and promoted. (176) Mattice believes that by exhibiting positive behavior and expecting the same from all employees it will create "an environment that not only prevents harassment but actively encourages respectful and equal treatment." (177) Furthermore, employment lawyer Jason Smith, (178) stated that not only does sexual harassment prove a problem for employers by getting in the way of productivity, but the real issue is whether "the organization is going to send a message that they have a strong stance against sexual harassment, [and that they] take action immediately upon its occurring." (179) Both Mattice and Smith encourage reformulating an organization's workplace culture to prevent sexual misconduct from occurring in the first place.
Fortunately, there is a trend of companies taking the initiative toward creating a positive work culture and sending the message to their work force that sexual misconduct will not be tolerated. For example, Microsoft(180) changed their sexual harassment policy "eliminating forced arbitration agreements that required employees to resolve such claims out of court--and out of the public eye." (181) Furthermore, Microsoft's initiative is supported by proposed federal law, (182) so they may be ahead of the curve. In fact, Microsoft's President and Chief Legal Officer Brad Smith stated that the idea to change their policy came from a conversation with Senator Graham, who has proposed the federal law. (183) He concluded that if Microsoft "were to advocate for legislation ending arbitration requirements for sexual harassment, we should not have a contractual requirement for our own employees that would obligate them to arbitrate sexual harassment claims." (184) With this private company-led initiative, Microsoft is not only sending a message to its workforce but to any and all industries that each company or organization has the power to not include sexual misconduct claims as part of their pre-employment arbitration agreement. Those that participate suggest that their company is less vulnerable to law suits or at least confident in their transparency because they have put in the work on the front-end by creating a positive work culture.
Furthermore, removing a leader from their position of power within the company for not abiding by company policy is an option that companies have at their disposal. For instance, the Ford Motor Company removed one of their top executives over allegations of inappropriate behavior not in line with their corporate policy or desired work place culture. (185) Alternatively, company leadership may choose to resign, like Steve Wynn, a Casino magnate, or Omeed Malik, managing director for Bank of America, both resigned over sexual misconduct claims. (186) The point is that the removal or resignation of a higher echelon leader sends the message to the entire company that sexual misconduct will not be tolerated by anyone.
Similarly, the EEOC, though technically a federal agency, uses the #metoo hashtag to deliver information to a larger demographic like a company would act to promote its product. (187) In this case, the EEOC is using the hashtag to announce sexual harassment litigation in its press releases to expand the breadth of knowledge about the issue and how it plays out in litigation. (188) It is an innovative way companies, organizations and agencies can promote not only their business but the work they are doing to combat the problem.
Furthermore, for female entrepreneurs, who do not have employers, instead are women trying to gain equal footing in the entrepreneurship world and are faced not only with being funded disproportionately less than their male counterparts, but are consistently harassed and propositioned, placing them in a precarious situation of balancing their desires to be funded and their safety. (189) For there to be real equal opportunity that includes safety for all, the pervasive and ingrained ecosystem that harbors and protects sexual predation within our very workforce must be exposed. (190) A founder of Linkedln, Reid Hoffman, along with other top Silicon Valley venture capitalists and other technologists have condemned sexual misconduct by their peers, colleagues, or employees and have called for investors to sign a "decency pledge." (191) In effect, this could mean that investors would walk away with their money if the company is at all linked to sexual misconduct. Furthermore, it holds the company to a higher standard of accountability and reporting protocols. (192)
Industry-led initiatives are crucial to resolving the use of nondisclosure agreements in sexual misconduct cases, particularly if companies are dedicated to creating a positive work culture by adhering to the company's core values to send a message not only to their workforce but to state and federal legislators.
D. A Holistic Approach to Resolving the Use of Nondisclosure Agreements in Sexual Misconduct Cases
The triad of the judiciary, legislation, and industries must work in conjunction with each other to begin resolving the use of nondisclosure agreements in sexual misconduct cases. As the judiciary is preparing itself to address their insular process of dealing with sexual misconduct, it also must confront the reality of with how their attitude toward the issue informs their interpretation of sex-based offenses, particularly when federal legislation is being proposed, which, if passed, may bring forth more litigation to the courts. Additionally, industry leaders have the opportunity to endorse federal legislation that promotes transparency, data collection, and better laws that support and promote a positive work culture. Finally, state and federal legislators must work together in advancing laws around the use of nondisclosure agreements, and by extension arbitration agreements, in sexual misconduct claims. As a result, the rethinking of the use of nondisclosure agreements in sexual misconduct cases going forward will stem from strong federal legislation, supported by the judiciary, and brave industry-led initiatives that activate a cultural shift toward a positive work environment. (193)
The widespread use of nondisclosure agreements enable sexual misconduct in the workplace and its continued use protects a patriarchal system and misogynistic society. Evidenced by industry and judicial workplace environments that have exploded with sexual misconduct allegations because the balance of power in the workforce tilts fatally against women. The extensive and pervasive use of nondisclosure agreements have up to date concealed this problem, to such an extent that we do not know its true breadth; which in effect has led to a public outcry of concern regarding our public health and safety. By rethinking the current approach to how nondisclosure agreements in sexual misconduct cases are governed one must re-imagine the role that the courts play in upholding new proposals of federal and state legislation, and the strength of industry-led initiatives all work in tandem with one another to bring forward a different synergy to workplace equity that envisions a positive work culture and a rebranding of equal opportunity within the workplace.
(1) The Daily Conversation, YouTube (Oct. 7, 2016), https://www.youtube.com/watch?time_continue=92&v=WhsSzIS84ks.
(2) Maggie Severns, Trump reiterates: Video was 'locker room talk,' Politico (Oct. 9, 2016, 9:24 PM ET), https://www.politico.com/story/2016/10/2016-presidential-debate-donald-trump-locker-room-talk-229450.
(3) Singh is a Professor of Biology at McMaster University, studies the variation and evolution of sex and reproduction related genes and sexual differences, and also studies race, caste, class, sex, and gender inequality. Singh has a 20-year background working with women in rural India to promote empowerment and eliminate violence against women. See Rama Shankar Singh, Patriarchal culture + male biology deadly mix for violence against women., National Post (Jan. 29, 2018, 11:54 AM), http://nationalpost.com/pmn/news-pmn/patriarchal-culture-male-biology-deadly-mix-for-violence-against-women.
(4) Singh, supra note 3.
(5) Id.; but cf. Oliver Darcy, Bannon: 'Anti-patriarchy movement' will 'undo ten thousand years of recorded history,' MSN (Feb. 10, 2018), https://www.msn.com/en-us/news/politics/bannon-anti-patriarchy-movement-will-undo-ten-thousand-years-of-recorded-history/ar-BBIWlZm?ocid=spartanntp (claiming that Trump is the patriarch and that an anti-patriarchal movement will have women in charge of society, thereby undoing thousands of years of history). See also Peter White, Michael Haneke On #MeToo: "The Witch Hunt Should Be Left In The Middle Ages," Deadline (Feb. 11, 2018, 2:03 AM), http://deadline.com/2018/02/michael-haneke-metoo-witch-hunt-comments-1202285106/.
(6) Amanda Taub, Special Tax on Women: Trump Tape Is a Reminder of the Cost of Harassment, The New York Times, The Interpreter (Oct. 10, 2016), https://www.nyrtimes.com/2016/10/11/business/a-special-tax-on-women-trump-tape-is-a-reminder-of-the-cost-of-harassment.html?register=google.
(10) Id.; see also Singh, supra note 3.
(11) Taub, supra note 6. Take the leaked video as an example, once Mr. Trump and Mr. Bush are greeted by Ms. Zucker, she professionally offers her hand, but is immediately prodded by Mr. Bush to give Mr. Trump (and himself) a hug. Additionally, there is an awkward and uncomfortable walking maneuver that occurs, which Ms. Zucker tames by walking in between the two men and hooking her arm through both men's arms, in order for all to "walk together." She is then unprofessionally asked who she would rather take out on a date. Throughout the entire clip one can almost sense her discomfort where she is consequently placed in a position to be "nice" or to not "hurt" their feelings, so she pleads the fifth. Funny as this may seem to some, it is in fact, for Ms. Zucker and for most women, a mental Olympics of balancing male egos, her reputation, and her professionalism. Both men on the other hand, are permitted to ask unprofessional questions and behave in unprincipled ways. Bottom line, 'locker room talk" exacerbates the lack of accountability by the male population for their sexual advances, behaviors, actions, and privileges used to perpetuate an imbalance in society, and more specifically on equal opportunity.
(12) A nondisclosure agreement, also known as a confidentiality agreement, is defined as "[a] contract or contractual provision containing a person's promise not to disclose any information shared by or discovered from a holder of confidential information, including all information about trade secrets, procedures, or other internal or proprietary matters. Nondisclosure Agreement, Black's Law Dictionary (10th ed. 2014).
(13) Katie Benner, Abuses Hide in the Silence of Nondisparagement Agreements, The New York Times (July 21, 2017),
(14) See, e.g., The Harvey Weinstein effect, USA Today, https://www.usatoday.com/pages/interactives/life/the-harvey-weinstein-effect/.
(15) This author will focus on sexual misconduct in the workplace in addressing the larger issue of violence against women.
(16) See Gina Mei, 18 Spot-On Responses to Donald Trump's "Locker Room Talk" Defense, Cosmopolitan (Oct. 9, 2016), http://www.cosmopohtan.com/poHtics/a5248065/twitter-responses-donald-trump-locker-room-talk/.
(17) See Scott Davis, Floyd Mayweather on Trump's controversial 'locker-room talk': 'That's how real men speak,' Business Insider (Sept. 15, 2017, 11:41 AM), http://www.businessinsider.com/floyd-mayweather-donald-trump-locker-room-talk-2017-9.
(18) See Marianne Schnall, Activist Men React To 'Locker Room Talk,' Huffington Post (Oct. 14, 2016, 4:34 PM, Updated Oct. 15, 2017),
(19) Taub, supra note 6.
(20) Benner, supra note 13.
(21) For the purposes of this comment, "sexual misconduct" includes: sexual harassment, sexual assault, or sexual abuse. Additionally, the intersection of race and gender identity in the context of nondisclosure agreements is beyond the scope of this comment.
(22) 1: social organization marked by the supremacy of the father in the clan or family, the legal dependence of wives and children, and the reckoning of descent and inheritance in the male line; broadly: control by men of a disproportionately large share of power. 2: a society or institution organized according to the principles or practices of patriarchy. Patriarchy, Merriam-Webster, https://www.merriam-webster.com/dictionary/patriarchy (last visited Feb. 18, 2018). See also Linda Napikoski, Patriarchal Society, ThoughtCo. (Dec. 1, 2017), https://www.thoughtco.com/patriarchal-society-feminism-definition-3528978; Philip Cohen, America Is Still a Patriarchy, The Atlantic (Nov. 19, 2012), https://www.theatlantic.com/sexes/archive/2012/ll/america-is-stiU-a-patriarchy/265428/.
(23) See generally Sarah Rosen Wartell et al., The Power of the President, Center for American Progress (Nov. 16, 2010, 9:00 AM),
(24) Rob Porter's situation relates to workplace sexual misconduct because given his history of abuse toward his ex-wives, he was currently at the time of resignation dating President Trump's White House Communications Director, Hope Hicks, and there were concerns that she would be on the victim end of Mr. Porter's violence.
(25) President Trump has been accused of sexual misconduct by multiple women, has been recorded bragging about sexually assaulting women, and has a pattern of defending the accused. See Kelly, supra note 20; see also Max Blau, These women have accused Trump of sexual harassment, CNN Politics (Oct. 24, 2016), http://www.cnn.com/2016/10/14/pohtics/trump-women-accusers/index.html.
(26) Kevin Liptak et al., White House aide denies abuse allegations but resigns, CNN (Feb. 7, 2018, 7:58 PM ET), http://www.cnn.com/2018/02/07/politics/rob-porter-white-house-resignation/index.html.
(27) See Katie Warren et al., The Powerful Men in the News Accused of Sexual Misconduct, NBC New York (Oct 25, 2017, Updated Jan. 31, 2018, 4:02 PM), https://www.nbcnewyork.com/news/national-international/The-Powerful-Men-Accused-of-Sexual-Harassment-452785093.html.
(28) Laurie Kellman, Trump's support for accused abuser fits pattern, Associated Press (Feb. 10, 2018, 12:28 AM), http://www.apnewsarchive.com/2018/President-Donald-Trump-has-lots-of-supportive-words-for-men-accused-of-misconduct-towards-women-Not-so-much-their-accusers/id-5af38a51a7724e72ad3df2e2e7388b08.
(31) While the larger issue of violence against women is not fully addressed in this comment, it will be used in context to the narrower issue of the use of NDAs as a tool to silence women which contributes to the larger issue of violence against women.
(32) Jennifer Hansler et al., Trump tweets on lives "being shattered*** by a mere allegation', CNN Politics (Feb. 10, 2018), https://www.cnn.com/2018/02/10/politics/trump-tweets-on-porter/index.html. See also Warren, supra note 27.
(33) Kellman, supra note 28.
(36) Peter White, Michael Haneke On #MeToo: "The Witch Hunt Should Be Left In The Middle Ages," Deadline (Feb. 11, 2018, 2:03 AM), http://deadline.com/2018/02/michael-haneke-metoo-witch-hunt-comments-1202285106/.
(37) Michelle Fabio, The Harvey Weinstein Effect: The End Of Nondisclosure Agreements In Sexual Assault Cases?, Forbes (Oct. 26, 2017), https://www.forbes.com/sites/michellefabio/2017/10/26/the-harvey-weinstein-effect-the-end-of-nondisclosure-agreements-in-sexual-assault-cases/#788f90fa2cll.
(39) MeToo, https://metoomvmt.org/ (last visited Feb. 18, 2018) (A call to join a movement that supports survivors and ends sexual violence).
(40) Jodi Kantor et al., Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, New York Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html.
(41) Jessicah Lahitou, How Non-Disclosure Agreements Work To Silence Sexual Assault Victims & Why States Want To Change That, Bustle (Oct. 25, 2017), https://www.bustle.com/p/how-non-disclosure-agreements-work-to-silence-sexual-assault-victims-why-states-want-to-change-that-2990138.
(43) Maria Puente, LAPD sends 3 Harvey Weinstein cases to DA for possible criminal charges, USA Today (Feb. 8, 2018, 3:41 PM), https://www.coloradoan.com/story/Ufe/2018/02/08/lapd-sends-3-harvey-weinstein-cases-da-possible-criminal-charges/320715002/(describing Mr. Weinstein as "[o]nce one of the most powerful producers in Hollywood"). See also, Kantor, supra note 40.
(44) Kantor, supra note 40.
(45) Id. (Preparing Mr. Weinstein for bed).
(48) Id. (Among them at least three employees, an actress, and a model).
(49) Puente, supra note 43.
(50) Megan Twohey, Harvey Weinstein Is Fired After Sexual Harassment Reports, The New York Times (Oct. 8, 2017), https://www.nytimes.com/2017/10/08/business/harvey-weinstein-fired.html.
(51) Mariah Dejesus-Remaklus, RED ZONE: "Weinstein effect' sparks national reckoning against sexual assault and harassment. The Northern Lights (Nov. 20, 2017), http://www.thenorthernUght.org/red-zone-weinstein-effetf-sparks-national-reckoning-against-sexual-assault-and-harassment/; see also The Harvey Weinstein effect, USA Today, https://www.usatoday.com/pages/interactives/Ufe/the-harvey-weinstein-effect/(an interactive calendar listing each day beginning from Mr. Weinstein's exposure on Oct. 5, 2017 to Jan. 30, 2018, where 150 powerful men have been accused of sexual misconduct, ranging from inappropriate texts to groping to rape; the content includes the number of accusers and the public reaction of the accused).
(52) Note that "it is not just women speaking out; several men have come forward with stories of sexual harassment and inappropriate behavior by Kevin Spacey." Dejesus-Remaklus, supra note 51.
The national debate sprang from white men in powerful positions losing their jobs when mainly white female accusers came to the forefront. Since that is what caught national headlines and the debate has grown since, the author will start here; however, acknowledges that the intersectionality of race and gender identity for both male accused and female accusers or vice versa is beyond the scope of this comment.
(53) Brooke Barnes et al., Weinstein Company Sale Delayed by N.Y. Attorney General Lawsuit, The NY Times (Feb. 11, 2018),
(55) See supra, note 12.
(56) NDA 101: What Is a Non-Disclosure Agreement?, Rocket Lawyer, https://www.rocketlawyer.co m/article/nda-101:-what-is-a-non-disclosure-agreement.rl. See also Richard Harroch, The Key Elements of Non-Disclosure Agreements, Forbes (Mar. 10, 2016, 11:45 AM), https://www.forbes.com/sites/allbusiness/2016/03/10/the-key-elements-of-non-disclosure-agreements/#621d667e627d.
(57) NDA 101, supra note 56.
(58) Confidential information like: schematics for a new product, client information, sales and marketing plans, reviews or news releases, a unique manufacturing process, test results, customer lists, software, passwords, system specifications, and other data. This not an exhaustive list. NDA 101, supra note 56.
(59) NDA 101, supra note 56.
(65) Contract defenses include: unconscionability, fraud, or duress. Breach of Contract: Defenses, US Legal, https://contracts.uslegal.com/breach-of-contract-defenses/.
(66) See generally A Nondisclosure Agreement, FindLaw, https://smallbusiness.findlaw.com/intellectual-property/a-nondisclosure-agreement.html.
(67) The Federal Arbitration Act (FAA) governs the enforceability of arbitration agreements in contracts. Typically, absent general contract defenses, the courts will play a hands-off approach. The idea is that "[t]he FAA reflects both a liberal federal policy favoring arbitration agreements and the fundamental principle that arbitration is a matter of contract." AT & T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1745 (2011). In other words, if an issue of sexual assault or harassment has occurred in the workplace, by law, the employee is boxed into an arbitration agreement that they signed prior to employment, thus, the courts do not have jurisdiction once "the Court [has] determine [d] that a valid arbitration agreement encompasses the dispute, then the FAA requires the Court to enforce the arbitration agreement." Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1012 (9th Cir. 2004).
(68) Fabio, supra note 37.
(69) Any non-employee claim will be referred to as a "survivor" claim, though these individuals may not be employees, they may be applicants for potential employment or related to the workforce.
(70) Fabio, supra note 37.
(71) Id.; see also Areva Martin, How NDAs Help Some Victims Come Forward Against Abuse, Time (Nov. 28, 2017), http://time.com/5039246/sexual-harassment-nda/.
(72) Fabio, supra note 37. See also Martin, supra note 71.
(73) Fabio, supra note 37.
(77) Hansler, supra note 32.
(78) Alanna Vagianos, 1 In 3 Women Has Been Sexually Harassed At Work, According To Survey, Huffington Post (Feb. 2, 2015, last updated Dec. 6, 2017), https://www.huffingtonpost.com/2015702/19/l-in-3-women-sexually-harassed-work-cosmopolitan_n_6713814.html. See also Gary Langer, Unwanted sexual advances not just a Hollywood, Weinstein story, poll finds, ABC News (Oct. 17, 2017), http://abcnews.go.com/Politics/unwanted-sexual-advances-hollywood-weinstein-story-poll/story?id=50521721; Claire Zillman, A New Poll on Sexual Harassment Suggests Why 'Me Too' Went So Insanely Viral, Fortune (Oct. 17, 2017), http://fortune.com/2017/10/17/me-too-hashtag-sexual-harassment-at-work-stats/.
(79) The organization for Part II, Section D of this comment was inspired by an article written by Emma J. Roth, Equal Justice Works Fellow, Women's Rights Project of the ACLU. See Emma J. Roth, Is a Nondisclosure Agreement Silencing You From Sharing Your 'Me Too' Story? 4 Reasons It Might Be Illegal, ACLU (Jan. 24, 2018, 9:45 AM), https://www.aclu.org/blog/womens-rights/womens-rights-workplace/nondisclosure-agreement-silencing-you-sharing-your-me-too.
(80) Equal Employment Opportunity Comm'n v. Astra USA, Inc., 94 F.3d 738 (1st Cir. 1996) (Astra USA is a pharmaceutical company).
(81) Id. at 740-41.
(82) Id. at 741, 747.
(83) Id. at 741.
(86) Id. (The EEOC declined to use their subpoena power in this case).
(89) Id. at 741-42.
(90) Id. at 744.
(92) Id. (citing EEOC v. Shell Oil Co., 466 U.S. 54, 69 (1984)).
(93) Id. at 744-45.
(94) Id. at 745.
(95) Id. at 746.
(97) Id. at 747.
(98) Id. Conversely, the court in Saini v. Intl Game Tech., distinguished Astra, noting that the balancing test did not produce the same result. 434 F. Supp. 2d 913 (D. Nev. 2006). Plaintiff Saini had signed multiple nondisclosure agreements throughout his employment and after termination had divulged information from those agreements to a third party. His employer alleged breach of contract; plaintiff alleged that the agreements were unenforceable as a matter of public policy. The court found that the agreements were valid contracts. Furthermore, the court stated that the uncovering of defective products is of importance to the public, but found "that public policy is not as high a priority as enforcement of sexual harassment law by the EEOC," in particular when "the defect at issue is not a threat to the safety or economic well-being of the public at large." Saini at 921. Additionally, the court decidedly made clear that the settlement agreements in Astra "were specifically designed to stifle evidence of wrongdoing, whereas the agreements at issue here are standard confidentiality agreements." Id.
(99) Astra USA Agrees To Provide $10 Million To Victims Of Discrimination, EEOC (Feb. 5, 1998), https://www.eeoc.gov/eeoc/newsroom/release/archive/2-5-98.html
(100) See Breach of Contract: Defenses, supra note 65; see also Freedom of Contract, Legal Info. Inst., https://www.law.cornell.edu/wex/freedom_of_contract.
(101) See Roth, supra note 79.
(102) Armendariz v. Found. Health Psychcare Servs. Inc., 24 Cal. 4th 83, 114 (2000). citing A & M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 486-487 (1982)).
(103) Id. at 114. (citing 15 Williston on Contracts (3d ed. 1972) [section] 1763A, pp. 226-227). (104) Correa v. Firestone Complete Auto Care, No. C 13-03123 CW, 2013 WL 6173651 (N.D. Cal. November 25, 2013 (citing Gatton v. T-Mobile USA, Inc., 152 Cal. App. 4th 571, 581 (Cal. Ct. App. 2007).
(105) Id. (citing A & M Produce Co., 135 Cal.App.3d at 486-487).
(106) Bruni v. Didion, 160 Cal. App. 4th 1272, 1288 (Cal. Ct. App. 2008).
(107) Armendariz, supra note 102 at 114.
(107) Ferguson v. Countrywide Credit Indus., Inc., 298 F.3d 778, 783 (9th Cir. 2002) (Notably, few employees are in a position to refuse a job because of an arbitration clause, thus the pressure by an employer to have a potential employee sign a pre-employment contract with an arbitration clause, seems to protect the employer not the employee. Armendariz, supra note 102 at 115.
(109) Armendariz, supra note 102 at 114.
(110) Ferguson, supra note 108 at 784.
(111) See Roth, supra note 80.
(112) Fabio, supra note 37.
(113) Assuming that the arbitration clause includes arbitrating sexual misconduct disputes. See Jill Gross, AT&T Mobility, FAA preemption and class arbitration, SCOTUSBLOG (Sep. 15, 2011, 9:29 AM), http://www.scotusblog.com/2011/09/att-mobility-faa-preemption-and-class-arbitration/.
(114) AT& T Mobility LLC, supra note 67 at 1747. See also Gross, supra note 113.
(115) At the time of this comment the author focused on three states, although this author acknowledges that more state legislation on the issue is occurring.
(116) Lahitou, supra note 41.
(117) All Charges Alleging Harassment (Charges filed with EEOC) FY 2010 - FY 2017, U.S. Equal Employment Opportunity Commission,
https://www.eeoc.gov/eeoc/statistics/enforcement/all_harassment.cfm. See also Chai R. Feldblum et al., Select Task Force On The Study Of Harassment In The Workplace, U.S. Equal Employment Opportunity Commission (June 2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.
(118) Marie Solis, It's Not Just Hollywood: Women Are Attacked By Men In Nearly Every Workplace, Newsweek (Oct. 12, 2017), http://www.newsweek.com/its-not-just-hollywood-women-face-sexual-harassment-nearly-every-industry-683501.
(119) AB-1682 Settlement agreements: sexual offenses, Cal. Legis. Info. (2015-2016), https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB1682. See also Danielle Paquette, How confidentiality agreements hurt--and help--victims of sexual harassment, Wash. Post (Nov. 2, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/11/02/how-confidentiality-agreements-hurt-and-help-victims-of-sexual-harassment/?utm_term=.3eb4el991000.
(120) Senator Connie Leyva has also authored legislation that have been signed into law by Governor Jerry Brown to eliminate the statute of limitations on rape (Senate Bill 813) in 2016 and to criminalize sextortion (Senate Bill 500) in 2017. See Senator Leyva: Ban Secret Settlements in Sexual Assault and Harassment Cases: Bill Would Protect Women, Communities From Sexual Predators, Senate.gov (Oct. 19, 2017), http://sd20.senate.ca.gov/news/2017-10-19-senator-leyva-ban-secret-settlements-sexual-assault-and-harassment-cases.
(121) Ricardo Lopez, California Lawmaker Calls for Ban on Secret Settlements for Sexual Harassment (EXCLUSIVE), Variety (Oct. 18, 2017), http://variety.com/2017/biz/news/bill-settlement-ban-sexual-harassment-harvey-weinstein-1202593778/.
(122) See Senator Leyva: Ban Secret Settlements in Sexual Assault and Harassment Cases: Bill Would Protect Women, Communities From Sexual Predators, supra note 120.
(124) Lahitou, supra note 41.
(125) N.Y. S.B S6382A, N.Y. State Senate, https://www.nysenate.gov/legislation/bills/2017/s6382. See also Claudia Koerner, Harvey Weinstein Scandal Spurs Lawmakers To Go After Nondisclosure Agreements, Buzzfeed News (Oct. 12, 2017), https://www.buzzfeed.com/claudiakoerner/new-york-lawmakers-confidentiahty-agreements?utm_term=.hpEQEdM4G#.fnNKXlkvx; Lahitou, supra note 41.
(126) Koerner, supra note 125.
(127) See AT & T Mobility LLC, supra note 67.
(128) Koerner, supra note 125.
(130) Lahitou, supra note 41.
(132) Ann Fromholz practices employment law and does workplace investigations for the Fromholz Firm. Koerner, supra note 125.
(133) Lahitou, supra note 41.
(137) Weinberg To Introduce Legislation Banning Nondisclosure Agreements that Seek to Silence Victims of Sexual Harassment, Assault, Insider NJ (Oct. 31, 2017), https://www.insidernj.com/press-release/weinberg-introduce-legislation-banning-nondisclosure-agreements-seek-silence-victims-sexual-harassment-assault/; See also Lahitou, supra note 41.
(138) See Weinberg To Introduce Legislation Banning Nondisclosure Agreements that Seek to Silence Victims of Sexual Harassment, Assault supra note 137.
(139) Lahitou, supra note 41.
(140) Joan Biskupic, CNN Investigation: Sexual Misconduct By Judges Kept Under Wraps, CNN Politics (Jan. 26, 2018, 12:35 PM), https://www.cnn.com/2018/01/25/politics/courts-judges-sexual-harassment/index.html.
(144) Ninth Circuit Federal Judge Alex Kosinski retired after at least fifteen women accused him of sexual misconduct which prompted a formal inquiry. Niraj Chokshi, Federal Judge Alex Kozinski Retires Abruptly After Sexual Harassment Allegations, NY Times (Dec. 18, 2017), https://www.nytimes.com/2017/12/18/us/alex-kozinski-retires.html.
(146) Biskupic, supra note 140. (According to CNN, only ten cases per year since 2006 have been deeply investigated and only a few of them resulted in any disciplinary action. Furthermore, in the past eleven years, six of those years did not result in a single reprimand, suspension, or sanction of a judge for misconduct. CNN reviewed 5000 judicial orders for the past 10 years).
(148) See Chokshi, supra note 144.
(149) Biskupic, supra note 140.
(150) Id.; see also Clarence Thomas Accuser Calls For His Impeachment, CBS News (Feb. 20, 2018, 2:06 PM), https://www.cbsnews.com/news/clarence-thomas-accuser-calls-for-his-impeachment/. (Discussing several women's account that Justice Thomas participated in sexually harassing them. They hope the success of the #MeToo movement will trigger a reassessment of the allegations against Thomas, who was accused of gross behavior by Anita Hill and other women during the 1991 hearings).
(151) Stephanie Russell-Kraft, Federal Judiciary Asks Clerks To Weigh In On Preventing Sexual Harassment, Big Law Business (Feb. 21, 2018), https://biglawbusiness.com/federal-judiciary-asks-clerks-to-weigh-in-on-preventing-sexual-harassment/.
(152) Id. (uscourts.gov).
(155) Id. (According to James C. Duff, director of the court's administrative office). (156) See AT&T Mobility LLC. v. Concepcion, 131 S. Ct. 1740, 1747 (2011); Gross, supra note 113.
(157) See Press Release, Lindsay Graham, U.S. Senator, (S.C.), Graham, Gillibrand Announce Bipartisan Legislation To Help Prevent Sexual Harassment In The Workplace (Dec. 6,2017), https://www.lgraham.senate.gov/public/index.cfm/press-releases?ID=CAF74791-2ElC-4026-8BD0-3774292BC858.
(160) See AT& T Mobility LLC, supra note 67.
(161) Representatives Carolyn Maloney (D-N.Y.), Ro Khanna (D-Cal.), Annie Kuster (D-N.H.), Jamie Raskin (D-Md.) and Tom Suozzi (D-N.Y.) See Alanna Vagianos, House Democrats Push to End 'Corporate Culture of Secrecy' Around Sexual Harassment, HUFFINGTON POST (Dec. 19, 2017),
(162) Sebastian Murdock, Former Weinstein Assistant Zelda Perkins Explains Why Gag Laws Need To Be Changed, HUFFINGTON POST (Dec. 19, 2017), https://www.huffingtonpost.com/entry/former-weinstein-assistant-zelda-perkins-explains-why-gag-laws-need-to-be-changed_us_5a395a46e4b0860bf4ab911e.
(163) Vagianos, supra note 161.
(167) Lopez, supra note 121.
(169) Julia O' Donoghue, Louisiana House kills legislation that was touted as preventing serial sexual harassment, (Mar. 26,2018),
(172) Catherine Mattice Zundel, international speaker, author, and consultant on replacing workplace bullying with positive workplace culture.
(173) Catherine Mattice Zundel, Calling All CEOs: Corporate Culture Is Your Best Defense Against Sexual Harassment Claims, Forbes (Feb. 22, 2018, 7:30AM) https://www.forbes.com/sites/forbescoachescouncil/2018/02/22/calling-all-ceos-corporate-culture-is-your-best-defense-against-sexual-harassment-claims/#702ec61b22cd. (Delineating eleven how-to tips for creating a positive work culture).
(178) Jason Smith, a Fort Worth-based employment lawyer; in 1999 he won the first sexual harassment jury verdict in Tarrant County.
(179) Drew Davison, Cuban, Mavericks 'on the legal hot seat' over sexual harassment claims, Star-Telegram (Feb. 23, 2018, 6:29 AM), http://www.star-telegram.com/sports/nba/dallas-mavericks/article201545079.html.
(180) Microsoft, a technology company.
(181) Chris Morris, Microsoft Changes Its Sexual Harassment Policies In the Wake of#MeToo, Fortune (Dec. 19, 2017), http://fortune.com/2017/12/19/microsoft-changes-sexual-harassment-policies/; see also Sara Ashley O'Brian, Microsoft Lifts Policy That Silences Sexual Harassment Claims, CNN Tech (Dec. 19, 2017, 1:59 AM), http://money.cnn.com/2017/12/19/technology/microsoft-ends-forced-arbitration/index.html.
(182) See Graham, Gillibrand Announce Bipartisan Legislation To Help Prevent Sexual Harassment In The Workplace, supra note 157.
(183) See O'Brian, supra note 181.
(185) The Associated Press, Ford ousts top exec over 'inappropriate behaviour,' Fin. Post (Feb. 21, 2018, 5:42 PM), http://business.financialpost.com/pmn/business-pmn/ford-ousts-top-exec-over-inappropriate-behaviour.
(187) The HR Specialist, Guess Who Else Is Invoking #MeToo: The EEOC, Bus. Mgmt.
(Feb. 23, 2018, 10:00 AM),
(189) Benner, supra note 13.
(190) See e.g., Katie Benner, Women in Tech Speak Frankly on Culture of Harassment, The New York Times (June 30, 2017),
(193) See generally Morris, supra note 181.
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|Publication:||Loyola Journal of Public Interest Law|
|Date:||Sep 22, 2018|
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