Do non-disclosure agreements hurt or help women?

Non-disclosure agreements (NDAs) in sexual harassment and assault cases are now at the center of a heated feminist debate. On one side, #MeToo leaders point out that repeat predators like Harvey Weinstein have used NDAs to silence victims and avoid detection and punishment while continuing to offend. The Catholic Church followed the same pattern in protecting pedophile priests. These scandals came to light in part because brave victims came forward in defiance of NDAs. The recent book “She Said” suggests that victims’ lawyers share some blame for abuse because they advise clients to sign NDAs.

On the other side, some feminists defend the use of NDAs. Gloria Allred, a feminist lawyer who has been targeted for such criticism, has defended her regular use of non-disclosure agreements. Allred points out that many victims value their privacy and reasonably prefer not to relive their assaults and harassment in public or to become publicly known as victims. As well, she argues that victims often have good reason to settle their claims rather than litigating, and without NDAs, perpetrators will not settle. According to Ms. Allred, NDAs expand victim choice — letting them decide whether to speak or be silent and whether to litigate or settle. Demanding that they sacrifice these benefits for the common good is unreasonable.

In jurisdictions that enforce NDAs, Ms. Allred likely has the better argument. But California and several other states have recently adopted new laws to combat the ills of NDAs without harming harassment victims. These laws make many non-disclosure agreements unenforceable. If the new California law works as planned, fewer victims will sign NDAs. Those who do sign will not be obligated to keep silent. Although they are imperfect and subject to evasion, these NDA bans are an important advance in preventing sexual assault and harassment. Many victims will continue to be silent. But more victims will be free to speak. Ms. Allred’s arguments for NDAs are not persuasive in the context of laws making these agreements unenforceable.

Notably, California’s new law outlaws NDAs that keep perpetrator secrets but allows NDAs that protect victim anonymity — so victims will no longer need to promise to keep perpetrators’ secrets to protect their privacy. Allred’s argument that perpetrators will not settle claims if they cannot be guaranteed privacy becomes less compelling under this new law. Anecdotal evidence from California and elsewhere suggests the opposite. When perpetrators cannot bully victims into promising secrecy, they settle nonetheless. Among other reasons, they too wish to avoid the cost and publicity of trials. Further, there is no evidence so far from California that victims will receive lower compensation when these cases do settle. NDA bans like California’s give victims a choice to come forward, either immediately or later, without compromising their privacy. In this sense, NDAs undermine, rather than enhance, victim choice.

NDAs can exacerbate serious harms. When victims sign NDAs with serial predators like Harvey Weinstein, their agreement to stay silent facilitates continued predation. NDAs also allow the organizations that employ such perpetrators to hide their knowing complicity. Even in less spectacular cases, NDAs undermine the important functions served by publicly identifying sexual harassers. Among these functions is allowing social pressure to influence behavior. Public shaming and shunning have fueled the #MeToo movement. By allowing wrongdoers to hide from these social consequences, NDAs undermine the effectiveness of social sanctions to change behavior.

California’s experience suggests that NDA bans can protect victims and still root out the worst problems associated with NDAs. For our antidiscrimination laws to work, justice needs to be done and to be done visibly.

Prof. Scott Altman is an expert in jurisprudence, property and family law at the USC Gould School of Law.