Non-Disclosure Agreements In The #MeToo Era
Associate Evan Gibbs’ biweekly column in Above the Law tackles the question: Should the use of non-disclosure agreements (“NDAs”) be banned when sexual misconduct is involved? Gibbs weighs the pros and cons of such a ban and explores a potential middle ground, writing, “As a compromise, what if legislation governing NDAs required that settlement agreements in the sexual misconduct context include an option for the victim as to whether it contains a non-disclosure provision or not? Alleged harassers would then make two different settlement offers: one for an agreement containing a non-disclosure provision (a higher offer), and another for an agreement without a non-disclosure provision (a lower offer). The harasser (or the harasser’s employer) would still have an incentive to enter into an agreement without the non-disclosure provision to resolve the claims and avoid litigation, even though the victim could go public with the allegations. Both parties would still be incentivized to settle, but the victim would get to choose whether they want to retain the ability to speak out about their experience. |