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Why some women didn’t speak up: Confidentiality agreements

Every day, more accusations of sexual harassment are being made against powerful figures in politics, entertainment and the corporate world. Now, the role of confidentiality agreements and nondisclosure agreements (NDAs) is becoming a subject of scrutiny. In particular, several of the women who have accused Harvey Weinstein of sexual misconduct essentially broke nondisclosure agreements they had signed.

Weinstein’s NDAs

One of the women at the center of the conversation is Zelda Perkins, former assistant to Weinstein. Even though she signed a nondisclosure agreement requiring her to stay silent about her experience in exchange for a settlement, Perkins publicly accused Weinstein of sexual harassment. She says Weinstein asked her to give him a massage while he was in his underwear, requested that she be in the room as he bathed and tried to pull her into his bed multiple times.

Perkins says she and another female colleague decided to settle claims because they didn’t think they had any other options. The New York Times reported on similar confidentiality agreements between Weinstein and eight women.

Some believe that banning these types of agreements would go a long way toward stopping the harassment. “If there had been no secret settlement in the first case, maybe there wouldn’t be an additional 60 women," California state Sen. Connie Leyva said of the Weinstein scandal.

A History Of Silence

Weinstein’s sexual harassment scandal is not the first one to involve NDAs and other confidentiality agreements. The late Roger Ailes and Bill O'Reilly, founder of Fox News and former host respectively, paid millions to silence women accusing them of sexual harassment. It appears that these contracts are a common tactic employed by powerful men accused of sexual misconduct.

NDAs ban the aggrieved party from discussing the terms of the agreement or pursuing litigation. The accused can sue for injunctive relief if the aggrieved party violates the NDA. Suing would recover damages and cease the release of information.

Perkins chose to speak out against Weinstein in spite of the NDA because she wanted to reveal — in her words —how egregious these agreements are, as well as the intense pressure victims face to enter into these confidentiality agreements.

Gloria Allred’s Stance

Gloria Allred has stated that nondisclosure agreements in some form must be an option available to protect victims, should they wish their names and personal experiences to remain confidential. Our firm has represented thousands of individuals who opted to enter into these agreements because they didn’t want their friends, parents, co-workers, the media and community members to find out about their experiences. However, it is important to closely examine the use of these agreements when there is a major imbalance of power between the accuser and the accused.

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