Sexual Harassment Settlements’ Confidentiality Issues

Here’s why sexual harassment settlements’ confidentiality clauses are important despite the downsides.

In order to attain a settlement for a sexual harassment case, employees often have to sign a confidentiality agreement.

Although there are downsides, there are many reasons why an employer may want a confidentiality agreement, but there are also reasons why it can benefit employees, too.

One major downside of sexual harassment settlements’ confidentiality clauses is that they can hide serial harassers, as evidenced by the multitude of victims that came forward during the #MeToo movement to accuse Harvey Weinstein and Roger Ailes of sexual harassment and or sexual assault. Not only did Weinstein use confidentiality clauses in his sexual harassment settlements, but The Weinstein Company made all their employees sign Non-Disclosure Agreements (NDA) at the start of their employment with the company. This prevented employees from speaking ill of the company. Without the publicity, victims did not know just how many others were in the same shoes as them, and didn’t step forward to tell their story.

This leads to another related downside, which is that the companies with serial sexual harassers and hostile work cultures can maintain their reputation which will allow the problems to continue happening. Without the public backlash, many harassers will continue their conduct in secrecy. By exposing these harassers, like the #metoo movement did, it can potentially help save others from being the next victims.

Despite the downsides, there are many benefits for employers as well as employees to continue using confidentiality agreements.

Employers often have to weigh the time and money it can take to fight a sexual harassment claim. Frequently, the litigation is far costlier than settling quickly with the employee even if they would win the case. The confidentiality agreement within the settlement would therefore help the company in a few ways. It would protect their reputation, it would prevent other employees from learning about the case and trying to make up a claim of their own for settlement money, and it would allow the company to resume business.

Employees can also benefit from the confidentiality clauses. Employers are often more willing to pay out larger settlements if the employee is willing to keep the matter confidential. Sexual harassment is often difficult to talk about and settling quick allows the victim to put the incident behind them and not have to relive it in every detail like they would in a court case. The confidentiality aspect also means that the victim can keep the case private from coworkers, family and friends. This can help victims move forward with their lives. The case also wouldn’t follow them to their next job.

Should you sign a confidentiality agreement? Consult with an attorney first. For more information, send us a message.