Shouldn't Victims Be Allowed Privacy?

New laws and novel legal approaches are deterring non-disclosure agreements (NDAs) as part of settlements involving sexual harassment allegations.  But what about a victim who wants to maintain privacy?

In simplest terms, an NDA is an agreement by an accuser to not discuss their allegations or the settlement in exchange for a payment from the accused or the accused’s employer. 

NDAs are good:

  • Many times, facts are in dispute or the perspectives of those involved are different.  NDA’s provide an incentive to compensate a victim, even if the accused feels the allegations are unjust. 
  • The accuser can avoid further victimization through an NDA.  It puts an end to the events without the victim having to relive them over and over—in a deposition, in court, in the media.
  • NDAs allow a victim and the accused to resolve matters fairly based on their particular circumstances.  Without NDAs, there is the risk that a standard, known “price” will develop for sexual harassment claims.  This could lead to harassers calculating it as merely a cost to be paid and/or employees making false claims just to get paid the going price. 

NDAs are bad:

  •  NDAs that prevent victims from sharing what took place prevent victims from warning others. 
  • NDAs allow repeat harassers to continue their harassment without the deterring consequence of public reprimand and damage to their reputation.

Whether you think NDAs are good or bad, you should know that they are under attack:

  •  The new tax law includes a provision that makes settlements and payments related to sexual harassment or sexual abuse non-deductible if an NDA is included.  The law extends to payments for attorney’s fees related to any settlement or payments that include an NDA.  There is no exception for an NDA requested by the accuser rather than the accused.
  • Some states have laws in place already that prevent non-disclosure agreements that would hide “public hazards.”  Some lawyers have suggested that these laws can be used to invalidate NDAs in sexual harassment and sexual abuse cases.
  • Direct bans on non-disclosure agreements in sexual harassment and other employment-related cases are being considered by some states.  New York, California, Pennsylvania, and New Jersey are among them.

Our view:  The benefits of NDAs outweigh their negatives.

  • Sexual harassment by powerful people goes underreported.  Victims who know that their identity and their allegations will not be able to be kept private through NDAs may be reluctant to come forward, exacerbating the underreporting. 
  • NDAs are often the only negotiating tool that victims have if they want the legal process to end soon. 
  • If the true concern is stopping repeat harassers, then adding into a settlement behavior training and coaching for the accused seems more appropriate than removing NDAs which can also benefit the victim. 

Let us know what you think. NDAs—Do they have a positive place in sexual harassment settlements?