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Following the recent scandal targeting the film producer Harvey Weinstein, light has been shed on a complex legal contract between a firm and its employees. This contract, known as the non-disclosure agreement (NDA), is signed between two parties to share confidential information or to keep trade secrets private.
However, the shortcomings of such a deal have been emphasized recently. Indeed, Harvey Weinstein’s employees have blamed this agreement, in an unsigned letter, for making it easier to Weinstein to sweep all those events under the carpet. Although conscious of breaking the contract, they demand to bring this agreement to an end, in accordance with freedom of speech. This non-disclosure agreement, which ties Weinstein to his employees is, from now on, deemed harmful for the progress of the investigation.
Those non-disclosure agreements are not specific to the Weinstein Company but are to do with many firms which are concerned about their public image and would rather their employees took care of the company’s renown. Still, with those contracts, workers are not bound to give up the idea of pressing charges. How can we explain then that those judgements never bubble ?
According to Gail Auster, a New-York City lawyer, the red tape deter many victims from suing their bosses in federal courts. Not only are they afraid of conveying a reputation of litigiousness and of never working again but also they prefer to settle secret agreements with their firms. Those agreements are similar to NDA’s in the sense that, in exchange of money or other advantages, women commit themselves to remain silent and keep on with their career in an other company.
Even though this process is far more efficient than courts as it comes up quickly with a solution, culprits succeed in remaining pure as the driven snow and victims are not sheltered from psychological problems. Such episodes can then happen to other women : it is a vicious circle.
NDAs have multiple functions : they contribute to cultivating the firm’s image but they can also be a tool to conceal dreadful actions. The contracting party pledges to remain silent, most of the time in order not to compromise his or her reputation especially in the labor world, but compromises the conviction of the culprits. Should we stay silent or should we decry those actions knowing that we may jeopardize our career ?
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The article highlights the power of firms over the employees but especially over women. Freedom of speech can be hindered by many factors such as threats to remain silent, public image and a feeling of helplessness. This scandal triggered the outrage of many feminist organizations like UltraViolet. This activist group flew a plane with a banner over the Hollywood sign that read « Hollywood : stop enabling abuse ».
This story discloses the dark side of American film industry, a mighty field where money and power prevail. Keep in mind that Harvey Weinstein hasn’t been judged yet, but in this day and age, over fifty women have accused him of sexual assault or rape and the world-renown director, Quentin Tarantino has even admitted he had turned a blind eye on Weinstein’s actions.
Pour aller plus loin
- Non-disclosure agreements — an explainer, Financial Times – PAYANT
- How nondisclosure agreements protect sexual predators, Vox
- A Long-Delayed Reckoning of the Cost of Silence on Abuse, NY Times
In recent days, as numerous actresses have described harrowing encounters with Harvey Weinstein, the disgraced film producer, attention has turned to the vehicle that helped keep these episodes quiet for years: non-disclosure agreements (NDAs). “We did not know we were working for a serial sexual predator”, thirty or so of Harvey Weinstein’s former employees write in an unsigned letter published in the New Yorker on October 19th. “We knew that our boss could be manipulative”, they go on. “We did not know that he used his power to systematically assault and silence women”.
The authors of the letter say they want to end the enforced silence in which they have been held. “We know that in writing this we are in open breach of the non-disclosure agreements in our contracts”, they write. “But our former boss is in open violation of his contract with us—the employees—to create a safe place for us to work”. They ask the Weinstein Company to “let us out of our NDAs immediately” and to “do the same for all former Weinstein Company employees”. Freed of the gag order, former employees might “speak openly, and get to the origins of what happened here, and how”. Mr Weinstein has denied allegations of non-consensual sex.
The Weinstein scandal raises questions about the prevalence and enforceability of NDAs. Many companies, in many industries, ask new employees to sign non-disparagement clauses preventing them from casting the company or its leadership in a negative light, even after they leave their jobs. These clauses are the reason the authors of the letter are opting, for the time being, to remain anonymous. NDAs do not, however, impose a legal barrier to pressing charges if a boss commits a crime like rape or sexual assault. Nor do they immunise companies from civil lawsuits in cases of sexual harassment. According to Paul Secunda, a labour-law scholar at Marquette University, NDAs cannot ask employees to “waive their statutory rights before action occurs”.
This means that people facing harassment in the workplace—even those who signed non-disparagement clauses like those used at the Weinstein Company (pictured)—can file charges with the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the anti-discrimination provisions in Title VII of the Civil Rights Act of 1964. The EEOC is “overworked and understaffed”, according to Gail Auster, a New York City employment lawyer, and after a required 180-day investigation period, accusers generally give up on it and sue in federal court. State court is another option: most states have codified their own labour protections, and New York City has one of the toughest anti-discrimination laws in America.
But many women who endure sexual advances in the workplace never go public with their stories, Ms Auster says—and not because of the non-disparagement clauses in their contracts. The victims opt not to sue because they prefer to keep their experiences private and agree to settlements with their companies that require a different type of non-disclosure agreement: a promise to keep quiet about what happened and the settlement’s terms. Ms Auster explains that women are often caught “between a rock and a hard place” after being targeted for sexual harassment at work. On one hand, victims would often like the world to know about their perpetrators so they can be chastened and, perhaps, to save other women from a similar fate. But “it’s very hard to be a plaintiff”, reliving traumatic experiences in a public setting where “a defence lawyer is picking apart everything you say” and “making you feel bad about yourself”. And women have legitimate fears of never working again in their industry if they develop a reputation for litigiousness.
Many victims, then, agree to settlements with their companies. They receive an undisclosed sum of money and perhaps other benefits like health-insurance coverage or a letter of recommendation, and separate from their companies to pursue other career opportunities. Confidential mediation sometimes results in pragmatic solutions a court would never draw up, Ms Auster notes. One settlement she helped craft involved the establishment of a new educational programme on harassment for a company’s employees. That may sound promising, but it comes with a cost. “There’s a problem with all this confidentiality”, Ms Auster says. It keeps perpetrators in the shadows, unchecked. In Mr Secunda’s eyes, the trade-off is a catch-22: “harassed women can protect their careers and be compensated for the harm”, he says, “but then it’s going to happen to other women”. And Ms Auster points out that settlements are « not a cure for the humiliation, the loss of self-esteem and the other emotional distress » brought on by harassers. « Some women end up in psychotherapy for years », she says, « and this is how the settlement money is spent ».
A story from the 1990s pinpoints the difficulty of holding bosses to account for sexually harassing their employees. “I had smoking-gun evidence that a woman was being pursued by her boss”, says Ms Auster, who has been litigating workplace discrimination for over 25 years. Wary of the attention it would bring, her client did not want to file a lawsuit. She preferred a settlement in which she agreed to leave the company in exchange for money and silence. “As soon as the ink was dry” on the settlement agreement, the company that paid the woman promoted her perpetrator. “I was”, Ms Auster says, « beside myself ».