GUEST COMMENTARY: Allow sexual harassment victims to reject nondisclosure provisions in settlement agreements

GUEST COMMENTARY: Allow sexual harassment victims to reject nondisclosure provisions in settlement agreements



As this year’s session of the General Assembly begins winding down, legislators will be considering a number of bills relating to sexual harassment in the workplace.

The legislation is not only topical, it addresses a societal problem that has gone on for far too long. Too many people have been the victims of harassment. As our eyes begin to open we become more aware of this epidemic. It’s been about 30 years since we’ve addressed sexual harassment laws, and now is the best time for the General Assembly to take a close look at these legislative proposals that would make every workplace safer and less hostile.

This issue has been building to a crescendo for a year. In October 2017, the New York Times and the New Yorker reported that dozens of women accused Harvey Weinstein, renowned movie producer, of sexual abuse and misconduct over a period of at least 30 years. This scandal sparked the #metoo movement on social media, and has led to a movement of women speaking-out about harassment by prominent politicians, media executives, entertainers, and others.

A 2017 poll by ABC News and the Washington Post found that 54 percent of American women report receiving “unwanted and inappropriate” sexual advances with 95 percent saying that such behavior usually goes unpunished.

How did these high profile perpetrators keep their sexual misconduct quiet for so long?  Their actions were, in part, concealed from public view through the use of nondisclosure agreements that kept their victims silent.

One proposal before the legislature is a bill I have sponsored (2018-S 2687) that would void any provision in a settlement agreement, if the victim so chooses, that would prohibit the disclosure of the basic facts related to a claim of sexual harassment, sexual assault and retaliation for reporting sexual harassment and stalking. I find it unconscionable and unjust as a matter of public policy that perpetrators of sexual harassment and assault would be able to hide behind a dark veil of secrecy of nondisclosure agreements. This has to stop now.

Employers have used NDAs for years for legitimate purposes such as protecting trade secrets, inventions and proprietary information. But in recent years, NDAs have been used to protect the reputation of companies in instances when sexual harassment and sexual assault have been alleged, shielding sexual predators from accountability and consequences for their actions.  Further, NDAs also silence victims and stop them from discussing abuse — even with their families — and from warning others about the alleged perpetrator, putting innocent people in harm’s way.

Some have countered that this legislation could potentially lead to a diminishment of settlement amounts. I argue that this legislation would serve the greater public purpose by preventing predators form hurting or harming future victims. This should not be about large settlement checks, but about justice and dignity for victims and preventing future victimization.

If this bill is approved, it would help put an end to the practice of using nondisclosure agreements to cover-up abusive behavior in the workplace and society by providing victims the option to publicly identify those individuals who hurt them — and likely others as well if they are not stopped. If passed into law, Rhode Island would join the states of California, Pennsylvania and Washington, where similar legislation has already been enacted.

Sexual harassment is a blight, a tragedy and a social crisis. Victims are reluctant enough to talk about what has happened. There is no reason nondisclosure agreements should be used to add to that burden.

James C. Sheehan represents District 36 in the Rhode Island state Senate. He resides in North Kingstown.


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