For 19 years, Zelda Perkins told no one about how Hollywood mogul Harvey Weinstein had repeatedly harassed her while she worked as his assistant in Miramax's London office. She couldn't speak of it: Under the terms of a contract negotiated between her attorneys and Weinstein's, she had agreed to never share her story.
So she didn't — until this week. In a lengthy interview with the Financial Times, she explained that she was breaking her silence not just to shed more light on Weinstein's pattern of abuse — but to expose the convoluted legal provisions that had kept her quiet for so long.
"I want to publicly break my non-disclosure agreement," Perkins said. "Unless somebody does this, there won't be a debate about how egregious these agreements are and the amount of duress that victims are put under."
In the aftermath of the producer's epic downfall, a debate over the secretive legal agreements that hid his behavior is swiftly gathering steam. Lawmakers in New York and California are proposing legislation that would void any settlement agreement that conceals claims of sexual harassment or discrimination. Last week, a group of Weinstein Co. employees issued a statement demanding that they be released from their non-disclosure agreements, "so we may speak openly, and get to the origins of what happened here, and how."
These sorts of non-disclosure agreements and confidential settlements have been used to resolve claims against Bill Cosby, former presidential candidate Herman Cain and former Fox News CEO Roger Ailes. The New York Times reported last weekend that Bill O'Reilly settled a sexual harassment complaint in January for $32 million, with the intent of keeping the allegation out of court and the public view. The Times also reported that Weinstein has reached at least eight such settlements over decades.
But now some women, like Perkins, are balking at the terms of these agreements.
On Tuesday, former actor Caitlin O'Heaney told BuzzFeed News that she had decided to violate a confidential settlement to share her account of being punched by actor Val Kilmer during a 1989 audition for "The Doors," as director Oliver Stone looked on. She explained that she felt empowered by all the women who had come forward to share their experiences with Weinstein.
"Women have come together," O'Heaney told BuzzFeed. "I finally have the confidence to speak about this."
Minna Kotkin, a professor of law at Brooklyn Law School who specializes in employment discrimination, says she first wrote about concerns surrounding NDAs and confidential settlements more than a decade ago, when it was a discussion mostly limited to academic circles. She's glad to see it crossing into the mainstream.
"Why now? Because people are breaking their agreements, they're not complying, and then that's combined with the high-profile figures on both sides, both as the harassers and the victims," she says.
Cathy Schulman, an Oscar-winning filmmaker and president of the advocacy organization Women in Film, believes that these sorts of confidential settlements should be "prohibited entirely" in any case involving sexual harassment or abuse. "If we don't start by making this kind of behavior absolutely and unquestionably illegal, then I don't think we have a starting point," she said.
But not everyone is convinced that confidential settlements are bad for all accusers. Feminist attorney Gloria Allred, who represents some of Weinstein's accusers, has said that the needs of a particular plaintiff should be taken into account, even if an agreement prevents a predator's behavior from coming to light.
"If she resolves it in a way that's positive for her and that she feels good about, then that's what's most important," Allred told the Los Angeles Times. "And yes, it may mean that others may not know. But should it be mandated that no settlement should be confidential? We don't think it's a good idea."
Accusers can still file a complaint with law enforcement or the Equal Employment Opportunity Commission, regardless of a confidential settlement, though many don't feel comfortable pursuing that option. Kotkin agrees that some victims might want confidentiality to avoid the expense of a trial or the humiliation of coming forward publicly.
"But my experience is that most plaintiffs, especially those who have left the company, are really quite shocked by the fact that they can't talk about it at all, they can't tell their friends what happened," she says. "And as all of these stories come up, there is going to be less of a stigma for women who report it, and confidentiality should be less of a concern."
But it's not just the settlements stemming from an allegation that perpetuate secrecy, says entertainment lawyer Jonathan Handel, a contributing editor at the Hollywood Reporter. Many companies require broad non-disparagement waivers from all employees. Out-of-court arbitration agreements can also limit the ability of an accuser to come forward, he says.
These agreements can also keep victims from learning about the existence of other victims, Bernabei notes. When assisting her own clients with settlements, she reminds them of this, and the fact that a perpetrator may well go unpunished.
"You just have to hope that there's enough that happens down the road that the person will be exposed, and something will be done." As was the case with Weinstein, she said: "The dam burst."
In a case like his, there is safety in numbers for his accusers. Plaintiffs run certain risks by violating a confidential agreement — they could be forced to pay back the entire settlement amount, or more. Yet it seems unlikely Weinstein would sue his accusers — a step that would be unlikely to repair his image, Handel said.
"We're in a different cultural moment, at least in the entertainment industry, than we were even three weeks ago let alone a few years ago, with Cosby," he said.