Companies, and individuals, have a range of ways to make sure stories about misconduct do not spread.
Most financial settlement agreements between accused and accuser include non-disclosure provisions that bar the person receiving the financial settlement from talking about their allegations or even revealing the amount of the settlement, according to lawyers who have represented women in sexual harassment cases. Non-disparagement provisions, which prevent an alleged victim from speaking ill of the person or company they have accused, are also common.
The penalties for breaking this silence can be steep. “A lot of defendants and the companies they work for are powerful. They can put in draconian liquidated damages provisions in the event there is disclosure,” says one lawyer who has worked on such cases.
For example, an alleged victim might be forced to pay back not just the full amount of the settlement but also an additional financial penalty and the other party’s legal fees. “There is a lot of fear hanging over your head,” the lawyer says.
Many of the women who received settlements after accusing Roger Ailes, the former Fox News chief executive and Bill O’Reilly, one of its key presenters, of sexual harassment do not feel free to speak publicly about their experiences because of NDAs. That includes Gretchen Carlson, who received a $20m settlement in a lawsuit she filed against Ailes in 2016 that set off a cascade of allegations about the cable news network’s most powerful figures.
Ms Carlson has become an advocate for prohibiting forced arbitration clauses and their accompanying NDAs. “We have chosen as a culture to silence the victims either with settlements where you are gagged from ever saying what happened to you or enforced arbitration, which is a part of employment contracts now, and here’s the key — it’s secret,” she told CBS News last week.
However, NDAs cannot lawfully prevent people from reporting claims to law enforcement and government agencies, such as the Equal Employment Opportunity Commission in the US, or responding to a subpoena.
Allegations of sexual harassment or misconduct can also be kept quiet by limiting what employees can say about their workplaces. Employment contracts often include NDAs. Many also require that any complaints, including sexual harassment, be resolved in private arbitration rather than a courtroom. Those arbitration-only clauses — which are being challenged in a Supreme Court case — typically limit what a worker can say about the complaint and the ensuing arbitration.
“All of these operate to silence survivors of sex harassment and sex assault from coming forward and reporting, and they also help shield serial harassers from accountability,” says Maya Raghu, director of workplace equality at the US National Women’s Law Center. “As we’ve seen in the last few weeks, many survivors feel like ‘I’m the only one who this has happened to’ — so they stay silent.”