Harvey Weinstein’s decades-long campaign of sexual predation—with the newest allegations of assault coming from actress Dominique Huett and Weinstein’s former production assistant Mimi Haleyi—reveals that secrets are often deployed by the powerful as a tool to maintain control. The blanket use of confidentiality or non-disclosure agreements (NDAs) in contracts addressing sexual harassment claims has created a culture of secrecy, permitting perpetrators to muzzle their victims and to continue engaging in misconduct. At its heart, the Weinstein scandal is a cautionary tale illustrating that the irresponsible use of NDAs renders corporate leadership complicit in a pattern of egregious misconduct.
Weinstein signed settlement agreements with at least eight women over the years, though he reportedly victimized many, many more. In exchange for paltry sums up to $150,000, the victims who contemporaneously reported his misconduct gave up their right to take legal action against him and his company. Thanks to NDA provisions generally included in such settlement agreements, Weinstein’s victims also relinquished their right to discuss the incidents underlying their settlements. Attorneys like to say that settlement agreements function to “buy peace.” But in workplaces where sexual harassment is ubiquitous, what these agreements really do is buy secrecy.
The confidential resolution of workplace disputes can serve legitimate purposes in certain circumstances. There is no doubt, however, that a corporate policy of secrecy can facilitate the institutionalization of behavior that strips women of their dignity. The New York Times’ reporting revealed that the promise of secrecy may have contributed to a 2015 decision by the Weinstein Company to forgo an independent investigation into a complaint about Weinstein. That decision enabled Weinstein to continue targeting women with impunity.
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Irresponsible use of NDAs in sexual harassment settlements washes away the sins of favorite sons, much like the confessional once did in the Catholic Church. Serial misconduct by a star employee no doubt gives rise to conflicting priorities for corporate leaders since dismissing a star can undercut the bottom line. Thus profit potential can incentivize a company’s willful blindness. But masking misconduct comes with a price.
This is a call to arms for corporate leaders. The message is clear: Investment in preventative measures is a hollow gesture when corporate leaders uncritically condone the use of NDAs in all settlement agreements. Sexual harassment policies, regular training, and independent investigations are critical. But those measures alone will not stem the tide of sexual harassment.
That task falls to the corporate leaders who have the power—and the responsibility—to protect their workforces from the Harvey Weinsteins of the world. Leaders must carefully examine the circumstances of each settlement to determine whether an NDA effectively gives a perpetrator license to engage in continued misconduct.
As we have seen, social pressure is the great equalizer. Silence that has been bought with an NDA is precarious at best. When victims take back their voice, a star’s shine can dim with a hashtag. Corporate leaders who fail to take a stand to stop repeat offenders are on the wrong side of history.
Julie Moore and Marcie Vaughan are attorneys and HR consultants with Employment Practices Group and consultants with The Expert Institute.