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How confidentiality agreements hurt — and help — victims of sexual harassment

More than 60 women have accused Harvey Weinstein of sexual harassment and assault. (Paul Buck/European Pressphoto Agency-EFE/REX/Shutterstock)

For years, a contract enforced the silence of several women who say Harvey Weinstein sexually harassed or assaulted them.

California State Sen. Connie Leyva said it’s time to ban such confidentiality agreements, which she said allow wrongdoers to keep their positions of power and hurt more people.

In Weinstein's case, she said, “if there had been no secret settlement in the first case, maybe there wouldn’t be an additional 60 women."

Levya said she plans to introduce a bill next year to prohibit nondisclosure agreements in financial settlements that arise from sexual harassment, assault and discrimination cases. The rule would apply to public and private employers, she said.

Across the country, agreements remain routine in these cases. Last year, California became the first state to change that, barring nondisclosure agreements in civil cases that could be prosecuted as felony sex crimes.

New York lawmakers, meanwhile, recently introduced legislation that would void any employment contract that orders workers not to go public with harassment or discrimination claims.

The Weinstein revelations, Leyva said, inspired her to take the effort further.

“Whenever a woman is sexually harassed, I think she tends to blame herself,” she said. “The secret settlement might look like a way out. But it doesn’t help you move on, and it doesn’t keep this person from harming other women.”

Genie Harrison, an employment and sexual abuse lawyer in Los Angeles, said the reality is more complicated. Confidentiality agreements can lead to larger monetary awards for victims, who often seek time off from work and expensive therapy to heal, she said.

“I don't like the idea of forcing it upon the plaintiff that he or she can’t have confidentiality provisions,” said Harrison, who runs the Genie Harrison Law Firm.

[After Harvey Weinstein, Hollywood assistants urged to break culture of silence]

Some of her clients want to make sure no one finds out about the harassment they endured, she added.

Confidentiality agreements can also force employers to say that a former worker has moved on for a better opportunity — rather than because a colleague made unwanted advances toward them, Harrison said.

“I have represented women in high-profile positions, and they don’t want a word breathed of it,” she said. “They don’t want it to affect their jobs or relationships.”

Others, though, would take the right to share their experience over money.

“They want to be able to scream it at the top of the hills,” Harrison said. “Those plaintiffs can decline to settle and take their case to trial.”

Confidentiality agreements in a sexual harassment case typically require a plaintiff to stay quiet about what transpired, except to a spouse or a domestic partner. Subpoenas trump the contracts, though, as do interviews initiated by law enforcement officers.

Breaking these rules could risk a lawsuit, although lawyers argue that, in this climate, Weinstein accusers, in particular, probably are safe.

The fallen Hollywood mogul has offered his victims a public apology. “I cannot be more remorseful about the people I hurt and I plan to do right by all of them,” Weinstein pledged in a statement.

However, most victims of harassment do not receive such acknowledgment.

John Manly, founder of the Manly, Stewart & Finaldi law firm in Los Angeles, said some of his clients have come to regret signing confidentiality agreements — precisely because it keeps such incidents underground.

“What I tell clients when they come to me is: If you’re here for money, you’re making a mistake,” he said.

Healing, he argues, comes from talking about what happened, rather than burying it inside.

Manly, who represents victims of sexual assault, said nondisclosure contracts allow the cycle of abuse to continue.

“It makes them carry their perpetrator's secret, and the secret of the people who protected their perpetrator,” he said. “We should not allow that.”

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