By: Ben Lipkin Recently the American news cycle has been a steady stream of sexual assault allegations, from politicians such as Senator Al Franken to Hollywood celebrities such as Kevin Spacey it appears as though anyone could be a perpetrator. This sudden outburst forces the public to ask why. While possible answers like stigmas exist and may be part of the overall problem, one underlying legal loophole may be worsening the issue. Non-disclosure agreements (NDAs), which were intended to protect confidential business information, are being used to silence victims.
NDAs, or confidentiality agreements, are contracts between two parties wherein one or both participants agree not to disclose confidential information for a specific length of time or in perpetuity (Harroch, 2016). NDAs usually come in two forms: mutual NDAs are used when both parties share confidential information and non-mutual NDAs are used when only one side is divulging confidential information. These agreements usually describe both parties, the date information is being shared and when, if ever, the agreement expires (Harroch, 2016) Most information regarding research or company financial information can be covered in an NDA; however, not everything can. NDAs do not have infinite capabilities; for example, any information known to the public or information the receiver of information knew before the disclosure is not covered. One important caveat is that any information required to be disclosed to authorities is also not covered (IPR, 2015). For example, an NDA cannot cover criminal activities such as fraud. NDAs are also not valid if there is a lack of mutual assent to create the contract, if the contract was not thought to be legally binding, or the contract itself lacks definitiveness (Garfield, 1998). These cases are decided by courts; however, even with these exceptions, current law can cause serious problems. NDAs are not just used in a business setting; people in positions of high prestige and power utilize NDAs to protect their reputation. Celebrities may use NDAs to silence the details of their prenuptial agreements or their whereabouts; however, NDAs become problematic when they are used by people like Harvey Weinstein to silence victims of harassment (Greenfield, 2027). Contracts used to silence victims of harassment are generally done so under the guise of protecting reputation and personal information. An example of this type of agreement is a contracting stating: “’not disclos[e] to any person or entity any information … about any one at the firm’” (Greenfield, 2017). Although not explicitly stated, this type of agreement forces victims to keep silent about anything that could disparage anyone at the firm. Sexual harassment claims certainly harm the reputation of the accused and thus are prohibited under the agreement. The “me too” movement shows the effect of this very clearly. Arguably, American culture is such that victims are supported when they speak out, but don’t feel comfortable doing so; however, it is questionable whether NDAs can regulate these types of issues. According to the ACLU such agreements may fall under the “unconscionable” caveat wherein mutual assent could not have been possible. In cases with extreme power differentials, or coercion, contracts of this nature may not be viable. The ACLU furthers that such agreements may be contrary to the public good, presumably because perverse individuals would not be punished (Roth, 2018). One current law which could void NDAs in sexual harassment cases is the National Labor Relations Act (NLRA) which passed in 1935. Originally intended to allow workers to unionize, the NLRA has evolved over time. In the case of Phoenix Transit Sys. v. NLRB (2003) a United States Court of Appeals found that “an employer’s policy of requiring confidentiality in all sexual harassment investigations was overbroad and unlawfully interfered with the employees’ Section 7 rights (Klauser, Adam, et al, 2011). While there is still a dichotomy among the legal community as to how applicable the NLRA is in sexual harassment cases, it is still an important consideration. It is clear that the ambiguity of this law is not sufficient; however, our legislature is taking steps to correct this issue. Arizona Rep. Maria Syms (R-Paradise Valley) recently proposed House Bill 2020 which would directly address this issue. The bill reads A. A CONFIDENTIALITY AGREEMENT THAT RESTRICTS THE DISCLOSURE OF FACTUAL INFORMATION THAT IS RELATED TO A SEXUAL ASSAULT OR SEXUAL HARASSMENT, INCLUDING FACTUAL INFORMATION THAT IS RELATED TO AN ALLEGATION OF OR ATTEMPTED SEXUAL ASSAULT OR SEXUAL HARASSMENT, IS AGAINST THIS STATE'S PUBLIC SAFETY AND POLICY AND IS VOID AND UNENFORCEABLE. B. A PERSON MAY NOT ENTER INTO A CONFIDENTIALITY AGREEMENT THAT RESTRICTS THE DISCLOSURE OF FACTUAL INFORMATION THAT IS RELATED TO AN ALLEGATION OF OR ATTEMPTED SEXUAL ASSAULT OR SEXUAL HARASSMENT BY AN ELECTED OFFICIAL. C. THIS SECTION DOES NOT APPLY TO THE DISCLOSURE OF A MINOR CRIME VICTIM'S MEDICAL OR PERSONAL IDENTIFYING INFORMATION OR TO OTHER INFORMATION THAT IS SPECIFICALLY PROTECTED FROM DISCLOSURE BY LAW. (US Congress, 2017) This bill would retroactively invalidate all NDAs relating to sexual harassment and assault in Arizona; such a change, if enacted at the national level, would have unpredictable consequences. Although there are documented cases of NDAs being utilized in this way, the extent to which they are is unknown. NDAs are certainly an integral part of contractual law; they are universally recognized and breaking their terms can have severe consequences. These consequences, however, may be deterring victims of harassment from coming forward with their mistreatment. In current law NDAs may or may not be valid in these cases, and legislation is being proposed to bring much-needed clarity. Works Cited Garfield, Alan E. “PROMISES OF SILENCE: CONTRACT LAW AND FREEDOM OF SPEECH.” Cornell Law Review, vol. 83, no. 293, 1998. Greenfield, Rebecca. “How NDAs Maintain a Culture of Silence around Workplace Sexual Harassment.” The Independent, Independent Digital News and Media, 19 Oct. 2017, www.independent.co.uk/news/business/news/ndas-sexual-harassment-culture-silence-harvey-weinstein-non-disclosure-agreement-law-firm-a8008376.html. Harroch, Richard. “The Key Elements Of Non-Disclosure Agreements.” Forbes, Forbes Magazine, 10 Mar. 2016, www.forbes.com/sites/allbusiness/2016/03/10/the-key-elements-of-non-disclosure-agreements/#5c1b8015627d. Klauser, Adam, et al. The National Labor Relations Act Is Not Just for Unionized Employers Anymore. Cornell University School of Hotel Administration, 1 Nov. 2011, scholarship.sha.cornell.edu/cgi/viewcontent.cgi?article=1001&context=cihlerpubs. Non-Disclosure Agreement: a Business Tool. European Union, 2015, www.iprhelpdesk.eu/sites/default/files/newsdocuments/Fact-Sheet-Non-Disclosure-Agreement.pdf. Accessed 6 Feb. 2018. Roth, Emma J. “Is a Nondisclosure Agreement Silencing You From Sharing Your 'Me Too' Story? 4 Reasons It Might Be Illegal.” American Civil Liberties Union, American Civil Liberties Union, 24 Jan. 2018, www.aclu.org/blog/womens-rights/womens-rights-workplace/nondisclosure-agreement-silencing-you-sharing-your-me-too. United States, Congress, Confidentiality Agreements; Sexual Assault; Harassment . 2017. Maria Syms.
0 Comments
Your comment will be posted after it is approved.
Leave a Reply. |
Archives
March 2018
Categories |