Matt Lauer. Al Franken. Kevin Spacey. These are just a few of the prominent individuals who have been accused of sexual harassment in the wake of the Harvey Weinstein scandal. Victims continue to break their silence, shining a spotlight on our culture’s pervasive sexual harassment issue. The public’s interest in this issue is evidenced by Time magazine’s 2017 Person of the Year: “The Silence Breakers”—victims who have spoken out about sexual harassment and assault.

As more victims break their silence, a discussion about confidentiality provisions in the context of sexual harassment has emerged. The public has started to debate the legality and morality of these provisions which have forced some of these victims to remain silent for so long.

There are a number of ways in which a victim can be prevented from disclosing information about sexual harassment. The first is a non-disclosure agreement (NDA). Most employment agreements include an NDA, which is generally used to prohibit employees from discussing trade secrets or confidential company information. However, an NDA can also be used to bar an employee from speaking publicly about a coworker’s sexual harassment. NDAs can deter victims from speaking out, as violating the NDA may provide cause for termination.

Victims may also be silenced as a result of employment contracts that contain mandatory arbitration provisions. Rather than litigating the harassment claim in a public courtroom, these provisions force victims to resolve their claims in private, often confidential proceedings. As a result, victims cannot discuss the proceedings or the underlying harassment.

Members of Congress recently introduced a bill called the Ending Forced Arbitration of Sexual Harassment Act. As the name suggests, this legislation would make mandatory arbitration provisions in employment agreements illegal. Elimination of these provisions would allow victims of workplace sexual harassment to speak publicly about their experience and seek restitution in court.

Confidentiality provisions in out-of-court settlements can also prevent victims from publicizing the harassment. Out-of-court settlements of sexual harassment claims often provide that, in exchange for monetary payments, the victim cannot speak publicly about the terms of the settlement or the conduct underlying the claim. If a victim who has signed such an agreement later chooses to speak out, their actions would constitute a breach of the settlement agreement. This breach would give the harasser the right to sue the victim for repayment of the settlement and other damages.

For some employees who are unemployed due to harassment, whether voluntarily or as retaliation, the promise of quick money is enticing, regardless of the confidentiality provisions attached. Additionally, some victims are made to feel that such a settlement is their only recourse, as filing and pursuing a lawsuit can cost thousands of dollars and bring attention to their traumatic experience. If the victim later decides he or she wants to disclose the harasser’s conduct to warn others, he or she will be barred by the confidentiality provision of the settlement.

These confidentiality provisions create a culture of silence that allows harassers to continue their inappropriate behavior without facing any consequences. California State Senator Connie Levya plans to introduce a bill next year which would prohibit nondisclosure provisions in sexual harassment settlements. Passing this bill would allow victims to speak out, even if they have agreed to a settlement with their harasser. As a result, more harassers will be held accountable for their actions.

However, Senator Levya’s bill could lead to an unintended negative result for victims. The driving force behind settlements of sexual harassment claims is the promise of confidentiality. Absent the ability to buy a victim’s silence, harassers will have little incentive to settle. A victim’s only recourse will be to pursue a lengthy, expensive lawsuit. 

Confidentiality provisions, whether in settlements or employment agreements, allow sexual harassment to occur under a cloud of secrecy, shielding harassers and silencing victims. This secrecy perpetuates sexual harassment, as victims cannot hold their harassers accountable publicly, giving the harassers a license to victimize others. Congress’ legislation banning mandatory arbitration provisions in employment contracts and Senator Levya’s bill prohibiting nondisclosure provisions in sexual harassment settlements may help clear the cloud of secrecy and put an end to sexual harassment.

Yasmin Azodi is an attorney at Gerard Fox Law, where she handles litigation and transactional matters, with an emphasis on sports and entertainment.