As a follow-up to our last blog post about the #MeToo movement, I wanted to talk more about confidentiality and non-disclosure agreements. In my experience, when a potential client who has been sexually harassed comes to see us, she is often too ashamed to describe the harassment. It’s embarrassing, scary, and the fear of retaliation is very real. Victims are often ashamed to be labeled as victims of sexual harassment. Despite all that, almost all the people we talk to have the same motivation in reporting the sexual harassment: they want to make sure no one else is subjected to the same treatment.
In all my years of practice, unless the defendant is a public entity, every single settlement agreement my clients have agreed to require strict confidentiality provisions. It’s not a suggested settlement term; it’s a mandatory settlement term. In other words, no confidentiality, no settlement. I don’t pretend to know all that goes on inside the brains of employers and defense lawyers, but I can say with confidence that one of the most important reasons for employers requiring confidentiality is that they do not want others to learn of the harasser’s conduct or cause more victims to come forward.
With the #MeToo movement, many states are acting to end confidentiality provisions in settlements involving allegations of sexual harassment. (Iowa is not yet one of them). With these laws comes freedom for victims to raise their voices, share their stories, and do more to make sure harassers are no longer being protected by their employers.
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