Putting an end to use of nondisclosure agreements to cover-up abusive behavior


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.

Another horrific story of sexual assault involved Dr. Larry Nassar, physician for the U.S. Gymnastics Team, who pleaded guilty to 10 counts of criminal sexual misconduct in the first degree.

These incidences are far from isolated; 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 (NDAs) that kept their victims silent. 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 veil of secrecy of nondisclosure agreements. This must end!

That's why I've introduced legislation (2018-S 2687) that would render nonbinding any provision in a settlement agreement 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.

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 perpetrators 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

In the case of Dr. Larry Nasser, Olympian McKayla Maroney claimed that USA Gymnastics paid her not to speak about Nassar's abuse publicly. Maroney entered into a nondisclosure agreement willingly but stated that she was traumatized and not in the right frame of mind when she did so. Maroney used a portion of her financial settlement to pay for psychological treatment to cope with Nassar's abuse.

Some opponents of this legislation may argue that this legislation, if enacted, would lower the amount victims would receive in settlement compensation. Depending on the nature of the allegation, this is entirely possible. However, the damage caused by sexual misconduct is not merely about dollars and cents; it is about accountability and human dignity. Further, with or without NDAs, there will be fair settlement offers since companies still won't want to go to trial, especially given the public's increased awareness of and disgust with sexual harassment and sexual assault. Most importantly, the victim's having the option to go public with the facts of case will help put a stop to sexual predators who would surely harm others again if given the opportunity. That is a public good that you cannot put a price on.

In brief, 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 - individuals who could hurt others as well if they are not stopped. 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. The states of California, Pennsylvania and Washington have already approved similar legislation. Let us make Rhode Island the next state to take this very positive step.

James C. Sheehan, represents District 36 in the Rhode Island State Senate. He resides in North Kingstown and teaches at Toll Gate High.


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