Weinstein abuse allegations prompt U.S. lawmakers to try to ban non-disclosure deals

Sexual harassment and assaultallegations against high-profile public figureshave raised questions about the ethicalimplications ofnon-disclosureagreements and prompted some U.S. lawmakers to attempt tolimit or scrap such deals.

These settlements, say some critics like California Democratic State Sen.ConnieLeyva, allow perpetrators to buy their way out of trouble and escape justice,therebyjeopardizingthe public and other potential victims.

"People continue behaviours that work for them," Leyva, who will introduce legislation to ban such deals,told CBC News. "If I can harass, assaultwomen and just write a chequeto cover that up, and I've done it for years and years, why would I ever change my behaviour?"

But not everyone sees a move to limit such contracts aspositive.

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"I am not in agreement with restricting the choices that a victim has and requiring her to litigate publicly for many years against a high-profile figure, if that's not what she wants to do," women's rightslawyer GloriaAllred told CBC News.

"I think victims have suffered enough."

These agreements often offer a payout to anemployee who claims theyhavebeen sexually harassed or assaulted byanother employee or a senior executive.

Many of theagreements containa non-disclosure or confidentiality clause, meaning that in returnforfinancial compensation, the alleged victim will remain silentabout the allegations whilethe accused is not required to make any admission ofguiltor culpability.

Give up right to legal action

Not only do the women give up their right totake further legal action,says New Jersey employment lawyerNancy Erika Smith, but many agreements include a non-disparagementclause, meaning the alleged victim cannot disparagetheir alleged harasser or the company.

"When I have to talk to my clients about whether theywantto settle, I have to explain that ... a part of their life, they can'tdiscuss any longer," said Smith,whorepresentedformer Fox News host Gretchen Carlsonin her lawsuit against formerFox News CEO RogerAiles.

Indeed, many agreements contain a"liquidated damages" provision.

"If the facts are revealed, the employee automatically owes the employersome astronomical sum," wrote Brooklyn Law School professor MinnaKotkin in the Washington Post. "This keeps many victims of harassment from making their experiences known to others who might face the same dangers."

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This means that ZeldaPerkins, a former assistant for Hollywood producer HarveyWeinsteinwho signed a non-disclosureagreement in 1998,is now vulnerable to possible legal action. Perkinsrecently broke her agreement and wentpublic with allegations that her former boss tried to sexually assault a colleague 19 years ago.

It was the New York Times thatrevealedemployees of the Weinstein Company signed contracts that forbade them to criticize the company or its leaders in a way that couldharm its "business reputation" or "any employee's personal reputation." Butthe Timesalso reported some women had made claims they were abused by Weinsteinand received payoutsin return for signing confidentiality clauses and keeping quiet.

It's also been revealed Fox News reached confidentiality settlements with at least six women who made accusations against the network'sformer host Bill O'Reilly. Some of those women are now suing O'Reilly, claiming he broke the agreement by defaming and disparaging them.

'Men in every industry'

And more recently, the Times revealed that Vice Media paidat leastfour settlements involving allegations of sexual harassment or defamation against Vice employees, including its current president.

"It's not just famous men, it's men in every industry," said Smith, who also represents one of the women suing O'Reilly. [These contracts] has allowed them to continueto be predatorson women."

Daniel Hemel, an assistantprofessor at the University of Chicago Law School, has questioned the enforceability of these agreements. Waivers such as those the Weinstein Company had employees routinely sign which forbid employees to talk about sexual harassment and other workplace misconduct may violate federal labour law, Hemel wrote in a column for Vox.

However, confidentiality clausesbetween employees and employers seem to have the backing of the U.S. National LaborRelations Board.

That's why, when theCalifornia State Senate reconvenes in early January,Leyvasaid she will introduce legislation to ban these confidentiallyprovisions for public and private employeeswhen it comes to allegations of sexual assault andsexual harassment in the workplace.

"If they cannot enter into any kind of agreement, my hope is that it will just starta differentway ofbehavingin the workplace," she said.

New York is considering similarlegislation, while New Jersey, says Smith, would seek to allow the alleged victim to break these contracts, meaning the confidentiality provision would not be enforceable.

"I think they're going to be significantly curtailed," Smithsaid."And that means that we're really going to make great stridesto allow womento go to workin safe and respectful environments."

But Allredsaid such legislative attempts aremisguided. Shesaid women who are victims of assault but have signed a confidentiality agreement can still be subpoenaed to testify in a criminal case if thedistrictattorney wants to charge an alleged perpetrator.

Years of litigation feared

Instead, these proposed laws, she said, would hurt the victim of harassment and abuse. She said this wouldrequire women to go through years of litigationin a casethey may not win and force them to make public allegations they may want to keep private.

"They don't want to be sitting there in the witness stand in a court of law having to relive all of it. It's notwhat they want. They want to have thechoice of enteringinto a settlement."

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