Most claims involving sexual misconduct in the workplace (such as sexual discrimination and sexual harassment) are resolved with a settlement between the complaining party and the employer. These settlements typically contain nondisclosure provisions (also known as a “Non-Disclosure Agreement”, or NDA) that prohibit the complaining party from discussing information about their claim or the settlement agreement itself, with very limited exceptions.
In the wake of recent sexual misconduct claims by women against high-profile men in a number of business enterprises, including the news and entertainment industries, legislators, attorneys, and legal experts throughout the country are considering whether Non-Disclosure Agreements should be prohibited in settlement agreements involving sexual misconduct, both within and outside of the workplace. Some states, such as Washington and New York, have enacted legislation banning NDA’s in settlement agreements involving sexual misconduct, while several other states are contemplating similar legislation. Those who support a prohibition of NDAs in sexual misconduct claims argue that employers and individuals who engage in sexual misconduct should not be permitted to “buy” the silence of the victims. Opponents of prohibiting the inclusion of NDAs in settlement agreements contend that the NDAs provide an incentive for employers to settle sexual misconduct claims, and that without non-disclosure provisions, employers will force complainants into costly and time-consuming litigation. What is your opinion of requiring Non-Disclosure Agreements in settlements of cases involving sexual harassment/misconduct? Please explain your reasoning.