Sexual Assault and Non-Disclosure Agreements: 4 Ways an NDA Can Actually Help Your Case

By November 1, 2018 Blog
Sexual Assault and Non-Disclosure Agreements: 4 Ways an NDA Can Actually Help Your Case

An investigation by The New York Times found previously undisclosed sexual abuse allegations against Hollywood producer Harvey Weinstein that stretched over nearly three decades. How was it that he was able to continue this behavior for so long? The Times also reported that Weinstein’s employees had been required to sign contracts promising not to make statements that could harm the reputation of the firm or its top executives. In theory, that would mean women who were being sexually abused were prohibited from speaking out against their abuser.

“There’s a lot of misinformation surrounding non-disclosure agreements, as they pertain to sexual harassment and assault,” explains San Francisco trial attorney Ryan B. Erickson. “The fact of the matter is that a non-disclosure agreement in and of itself should not prevent you from seeking justice through a civil lawsuit if you have experienced sexual abuse or harassment. Sexual predators cannot hide behind a signed sheet of paper with absolute immunity.” In fact, the signing of a confidentiality agreement can actually help you build a legal case.

Signing a Non-Disclosure Agreement Doesn’t Prohibit You From Seeking Litigation in a Sexual Assault Case

There are ways to still pursue civil litigation for a sexual assault claim, even if you’ve signed a non-disclosure agreement.

1. Challenging a Non-Disclosure Agreement

According to the American Civil Liberties Union, there are several ways to challenge non-disclosure agreements (NDAs):

  • If you were coerced by a powerful entity to sign an NDA, it could be considered an unconscionable contract. A court may rule in favor of “procedural unconscionability” if you were threatened with personal or professional consequences for refusing to sign.
  • NDAs are unenforceable if they are determined to be contrary to public policy. For example, in one case, the federal circuit court shot down settlement provisions in a corporation’s NDA that prevented its employees from cooperating with the Equal Employment Opportunity Commission in their investigation.
  • In California, state laws bar settlement agreements with non-disclosure provisions related to rape or felony sexual battery.
  • The National Labor Relations Act protects the right of employees to engage in concerted activities for mutual aid or protection. One can easily see how prohibiting the discussion of sexual complaints would endanger other employees.
  • Certain legal elements trump a non-disclosure agreement by nature. Subpoenas from the government and interviews initiated by law enforcement officers cannot be thwarted by pointing to a signed agreement.

2.  Confidential Settlement Is an Option

There are many complexities when taking a sexual abuse case to court. The process itself could take years to complete. For some, a fast settlement is preferable to a drawn-out lawsuit. Not all sexual abuse survivors want to deal with the emotional impact of their case being heard in court. Concerns about privacy drive most confidential settlements. Working with an experienced sexual abuse attorney to confidentially settle your claims may be the right option for you.

3.  Future Employment Opportunities Are Protected

Confidentiality agreements can be two-way streets—they protect the company’s reputation, but they can also ensure a victim of sexual assault maintains their privacy after a civil case. We tend to think that women who report sexual harassment and abuse will be much better off once they’ve spoken out publicly about their experiences. Unfortunately, that is not always the case. Women in particularly high-ranking positions often don’t want the terms of their settlements to be public for fear of how it may impact their future employment prospects or relationships.

As Paula Brantner, senior adviser for Workplace Fairness stated: “Many people, after they’ve been through something like this, they didn’t want it to happen, they didn’t bring it upon themselves and they just want to put it behind them and go on with their lives. And so, some think the non-disclosure agreement is the best way to do that.”

4. Whether You Signed or Not, You’re on the Right Side of the Law

Since the Harvey Weinstein scandal and #MeToo Movement gripped the nation, pressure has been placed on legislators to regulate the enforceability of confidentiality agreements when allegations of sexual abuse or harassment are at issue.  

“If there had been no secret settlement in the first case, maybe there wouldn’t be an additional 60 women,” said California State Senator Connie Leyva of the Weinstein scandal. She and other lawmakers are calling for a ban on employer non-disclosure agreements.

In 2016, California became the first state to ban non-disclosure agreements in civil cases that could be prosecuted as felony sex crimes. The new proposals in SB 820 would extend that protection even further to include non-felony harassment as well. The bill passed both houses of legislature and awaits a signature from Governor Jerry Brown this session.

Work With an Attorney Who Will Fight for Your Rights

Businesses are careful to shield themselves from liability. But all too often, an individual’s rights get lost in the process. At Lewis & Llewellyn, we fully understand the confusion surrounding non-disclosure and confidentiality agreements. They can be misleading by design and aimed at keeping a lid on controversy, even when a public controversy is the appropriate result.

Your first meeting with one of our experienced team members is always fully confidential and free of charge, so you risk nothing by speaking to someone about your legal options. If you are worried about a disclosure you’ve signed, please speak with us when you are ready.

The attorneys at Lewis & Llewellyn have spoken to and helped scores of survivors of sexual abuse. The members of our firm are engaged advocates for social justice with ties to local outreach and survivor support groups.

You deserve to have a compassionate advocate who believes will navigate these complex systems on your behalf. Contact us today, or call +1 (415) 800-0590 to set up a free initial consultation.


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