The dozens of allegations of sexual assault against infamous Hollywood producer Harvey Weinstein and other powerful men have raised many questions about how society approaches sexual assault and harassment in the workplace. One of the most common questions people have is whether a non-disclosure agreement (NDA) prohibits alleged sexual assault victims from speaking out publicly or talking to the police about the assault. If you signed an NDA, are you forever prohibited from reporting an employer’s sexual assault to the police?
While the short answer is that an NDA can’t shield a perpetrator from criminal prosecution, whether an NDA can prevent a victim from going public with his or her story is a bit of a gray area.
Civil vs. Criminal Cases
The criminal justice system is broken down into two parts: civil and criminal. In a civil case, one party sues another for wrongdoing that is not criminal in nature. Some of the most common examples of civil wrongs (called “torts”) are car accident cases and breach of contract cases. In a civil case, the court isn’t asked to decide if someone should go to jail. Rather, the party who is determined to have carried out the wrongdoing must make the other person whole by paying money damages to that person.
By contrast, a criminal case involves the state or the federal government bringing a prosecution against someone who has been accused of committing a crime. Although money fines can be part of a person’s sentence, a criminal case also typically involves some sort of jail or prison time. Of course, there are always exceptions, such as criminal cases involving relatively minor offenses.
It’s also important to note that certain types of behavior can give rise to both a civil case and a criminal case. For example, if someone murders another person, they might face both a criminal prosecution in the criminal system as well as a wrongful death case in the civil system. This is exactly what happened to OJ Simpson, who was acquitted of murder in his criminal case but found liable in the subsequent wrongful death case in the 1990s.
Sexual Assault in the Workplace and Non-Disclosure Agreements
Before they accept a job, many employees are asked to sign an NDA. An NDA can cover a wide range of subjects, from trade secrets to company policies. Increasingly, employers include an NDA in other paperwork, such as a company handbook that employees are asked to sign. Unfortunately, some employees may not fully understand what they’re signing and may sign an NDA without realizing it.
The #MeToo movement has also exposed the fact that some employers have relied on NDAs to negotiate settlement agreements with employees who have been sexually harassed or sexually assaulted in the workplace. In most of these cases, the employer agrees to pay the employee a settlement amount in exchange for the employee signing an NDA that prevents him or her from “speaking out” about the assault.
As a result, some employees have stayed silent for years because they feared legal repercussions, such as a costly civil lawsuit, if they reported the sexual assault to the police or appropriate authorities in the workplace, such as human resources.
Workplace Harassment vs. Sexual Assault
The definition of sexual assault varies by jurisdiction. In all states, however, sexual assault is a serious crime. However, “sexual harassment” may or may not be a crime depending on the underlying behavior. In some cases, sexual harassment is considered unwanted behavior that gives way to certain rights in the workplace, but it is not a criminal offense under a statute. For this reason, it is not always clear if an NDA prohibits someone from “going public” about workplace sexual harassment if the person has signed an NDA.
Generally speaking, no type of NDA can prohibit a person from reporting a crime. Courts have found that an NDA that attempts to bar someone from reporting a crime is against public policy. For example, an NDA that gives you $1 million in exchange for promising to keep quiet about a murder is clearly void, as it is against public policy to cover up the murder. However, the law is a little less clear when sexual harassment and similar crimes don’t rise to the level of criminal behavior.
As one report states, “But it’s not as clear whether confidentiality agreements could be enforced when sexual harassment is an issue. Many courts apply balancing tests to determine whether employees can provide evidence in open court against, for example, sexual harassers when doing so would otherwise violate confidentiality agreements with employers. Without the benefit of legal counsel, and when, as may turn out to be the case with some of the Weinstein allegations, sexual harassment does not rise to the level of criminal sexual assault, workers are right to be uncertain about what NDAs prohibit. That, along with the accompanying risk of getting fired, can discourage employees from speaking up.”
Get Help from a Criminal Defense Lawyer
It’s easy to see how the issue of NDA’s sexual harassment and sexual assault can be quite complicated. Even an allegation of sexual assault can permanently damage a person’s career and reputation. This is why it’s important to work with an experienced sex crime defense lawyer of Broden & Mickelsen, LLP if you have been accused of sexual assault, sexual harassment, or any type of sexual crime.
Sources:
- https://www.theatlantic.com/business/archive/2017/10/legal-agreements-sexual-assault-ndas/543252/
- https://www.buzzfeed.com/gloriaallred/your-nda-cant-stop-you-from-getting-justice?utm_term=.phma0jzxA#.xd9OVAY0N
- https://www.npr.org/2017/10/11/557198031/weinstein-scandal-raises-questions-about-non-disclosure-agreements
