The #MeToo movement has brought increased awareness of nondisclosure agreements in sexual harassment and assault cases.
Illinois Coalition Against Sexual Assault Executive Director Polly Poskin said on GLT's Sound Ideas that nondisclosure agreements (NDAs) serve to protect the accused, and it's time for Illinois to start discussions on a law to restrict their use.
"At some point ... it has the effect of a cover-up,” Poskin said. “And we just have to have laws governing nondisclosure agreements because something needs to limit, if not eradicate, these nondisclosure agreements."
NDAs, or confidentiality agreements, can be used in any situation where two parties want to keep the details of an arrangement secret. Most recently, awareness has highlighted the use of NDAs in cases of workplace sexual harassment and assault cases.
"At some point ... it has the effect of a cover-up."
"They become more known to us, I think, as a result of the #MeToo movement and essentially they are a deal cutting with defendants and it prevents the victim or the plaintiff from publishing or revealing any of the results of the agreement," Poskin said.
The State of Washington recently passed a law banning the use of NDAs for claims of sexual harassment or assault.
Poskin said the use of NDAs allows businesses to keep secret claims of assault within their organization, whether it's a single complaint or a series of complaints that may point to a culture of harassment.
"These confidentiality provisions, I think they hide the severity and the pervasiveness of the harassment,” she said. “It's very damaging to the victim, and it's also another silencer. Victims live ... in this culture in sort of an enforced silence."
Culture of Silence
Poskin described a trend of not believing victims or blaming them for any harassment that occurred. Using NDAs does not tackle this culture.
"Victims have always felt that it's in their best interest for there to be silence. Either their own self-imposed silence, or in this case legal silence, about what has happened to them," Poskin said.
Survivors of assault oftentimes think keeping the harassment silent will save them from further victimization. Poskin said businesses build on this thought process and the existing culture to reach a settlement that only serves themselves.
"They're really protecting their own image, or their own liability, or in some instances, they just might be protecting the employee or the union member or the individual that they value greater than the person that has been victimized," Poskin said.
This prioritizing leaves victims with a sense of helplessness, which Poskin said is one of the worst feelings a victim of sexual harassment or assault can experience.
"They feel very helpless in knowing ahead of time, 'Am I going to get any support? Am I going to get the kind of response and even the protection around this behavior? Will my job be insured? Will the union not stand up for me as vigorously, perhaps, as if it's known that I'm going to speak out about the behavior that has been perpetrated against me,'" Poskin said.
Poskin described it as the victim having to trade off their fear of being victimized for silence. "It's just a bad cycle ... and it's hideous to our society," she said.
It's this culture that Poskin said allows perpetrators from Bill Cosby to Harvey Weinstein to USA Gymnastics Coach Larry Nassar to get away with what they did for so long.
"We have sort of developed either a sense of immunity to the severity and the impact that it has on the victim, or we have developed a culture that minimizes how serious sexual victimization, sexual violence, impacts the victim and the lives of people close to her (or him)," she said.
Though NDAs are frequently pursued by the organization, Poskin said they should be used only at the request of the victim.
She said when a victim requests the NDA, it honors them in the process.
"That would be recognizing that the victim wants to sort of control the outcome of this heinous behavior that has happened," Poskin said.
Some victims may request the silence to keep the sexual harassment or assault from their children or their family, or as a way to avoid detrimental implications at work, Poskin said.
Asked about the possibility of a law in Illinois restricting the use of NDAs, Poskin said, "it wouldn't be a step too far."
She noted a bill currently on Gov. Bruce Rauner's desk preventing the use of taxpayer dollars from being used as settlements in sexual harassment and assault cases that happen within Illinois government (HB 4243). The governor has until the end of the week to act on the measure.
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