The Washington PostDemocracy Dies in Darkness

Opinion The call to ban NDAs is well-intentioned. But it puts the burden on victims.

A demonstrator highlights sexual harassment during the Women’s March in Seattle on Jan. 20, 2018. (Ted S. Warren/AP)

Debra S. Katz and Lisa J. Banks are civil rights lawyers and founding partners of Katz, Marshall & Banks.

One of the most significant revelations of the #MeToo movement has been the way employers have silenced victims of sexual harassment and protected serial harassers, sometimes for decades, through the use of nondisclosure agreements (NDAs). Rather than meeting their legal duty to protect employees from sexual harassment, employers have often accepted such claims as the cost of doing business and focused their efforts on muzzling victims and making them invisible. In “Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law," by Jeffrey Rosen, Ginsburg suggested that in order to sustain the momentum of the #MeToo movement, courts should not enforce settlement agreements that contain such NDAs.

Given the shocking disclosures of the #MeToo movement, it’s unsurprising that the Supreme Court justice, along with many women’s rights activists, now questions or even advocates banning the use of NDAs in sexual harassment cases. This position is misguided. There is a crucial difference between correcting past wrongs and removing the option for confidentiality going forward. Like many civil rights lawyers, we know firsthand that truly voluntary NDAs can be essential to our clients receiving adequate compensation and achieving closure after a traumatic experience.

Our clients have often struggled for months, sometimes years, to manage the effects of being sexually harassed at work before making the difficult decision to seek legal advice.  Almost uniformly, they have suffered anxiety, depression, insomnia or other hardships while trying to avoid their harasser, redirect his behavior, navigate a dysfunctional corporate complaint process and avoid retaliation.  For low-wage workers, the economic pressures are often dire and their ability to find an attorney willing to take their case is more difficult, further blocking their access to justice. But for women who can afford to consult counsel, their goals are often simple yet urgent: They want to put a traumatizing experience behind them and move on. This typically requires compensation to bridge them to the next job and to receive treatment, when necessary.

Because litigation has immense financial and emotional costs, the vast majority of women prefer a settlement over litigation. This means the practical realities of legal negotiations will determine whether they see any compensation for their injuries, and it’s here the impact of an absolute ban on NDAs has the potential to cause the most harm. 

In nearly all settlements, from personal injury claims to contractual disputes, confidentiality provisions are an important bargaining chip for plaintiffs. Banning NDAs for sexual harassment claims will make many employers unwilling to enter negotiations at all. Where negotiations do occur, victims of sexual harassment will find themselves with less bargaining power than other legal claimants have, amplifying the imbalance that lies at the heart of sexual harassment itself. Banning NDAs would often leave harassment victims with only two options — pursuing litigation or remaining silent — placing women in a worse position, not a better one, and potentially giving employers and harassers a pass.

Banning NDAs would also deny victims of sexual harassment an important source of autonomy and protection after a traumatizing and degrading experience. For many women, having a legal guarantee that their harasser and co-workers will not be able to share painful, sometimes highly intimate, details about past events has great value.  Voluntarily entering into an NDA in these circumstances is not a cynical decision for women to “sell” their silence. Rather, women are taking rational steps to protect their privacy and reputations and avoid further trauma.

Women may also want a confidentiality agreement to avoid being forever associated with their harasser’s behavior in their workplace, within their communities and as part of their online identity, or to avoid losing future opportunities if prospective employers learn about a claim. While #MeToo has been an extraordinary platform for disclosure, it is essential that society also honor the wishes of women who do not want their stories to be told.  

While well-intentioned, the call to ban NDAs improperly places the burden on victims to protect other workers by insisting that women make their experiences public. The burden of correcting harassers’ behavior, and protecting future victims, should be borne by the employer, not the worker. Women’s rights advocates must instead urge systemic reforms that address how NDAs actually operate. New York’s recent overhaul of its state anti-discrimination law is a good example of such a nuanced approach, making NDAs voluntary, with time to reconsider a decision after the fact. 

Advocates should continue to explore creative solutions such as this. But reforms that protect women in theory but actually reduce their options and weaken their bargaining power are not the answer.

Read more:

Debra S. Katz and Hannah Alejandro: Blue states are leading in sexual harassment reforms. Red states are leaving women behind.

David Von Drehle: Jeffrey Epstein’s scandal of secrecy points to a creeping rot in the American justice system

Catherine Rampell: States are taking action on #MeToo. Why isn’t Congress?

Post Opinions Staff: The one best idea for ending sexual harassment

Gretchen Carlson: What a former Fox News anchor and McDonald’s workers have in common