What’s the true price of silence?
It’s the question at the heart of our new national reckoning with workplace sexual harassment claims and the nondisclosure agreements that cover them up.
For cable king Bill O’Reilly, his personal price reportedly tops $ 45 million, including a single whopping payout of $ 32 million last January for allegations of a “nonconsensual sexual relationship” with a Fox News analyst, according to the New York Times.
For Harvey Weinstein, his tab to conceal at least eight private settlements with harassment accusers remains unknown.
For society, the cost of a system where powerful men routinely open their wallets wide to keep victims’ mouths clamped shut appears to be a cycle of repeated, unbridled abuse.
Many think it’s time for a change.
“The confidentiality is what has allowed us to get nowhere,” lawyer Nancy Erika Smith, who represented Gretchen Carlson in her lawsuit against former Fox News chief Roger Ailes, told the Daily News.
“Underlying (these agreements) is the weird, ancient, and misogynist view that women should feel shame. Why be ashamed of being sexually assaulted by men? It’s a myth.”
The secrecy offers a breeding ground for continued abuse, she said. “If the goal is that we literally eradicate sexual harassment in the workplace, we have to be bold and seize this moment and stop the silence,” she said. “The light of day is the only way we’re going to stop sexual harassment.”
Some say what’s needed is an outright ban on nondisclosure agreements (NDAs) that silence victims when it comes to warning others or helping other plaintiffs.
It’s tricky territory.
NDAs generally come in two forms: privacy contracts signed as a condition of employment that preclude people from speaking publicly about alleged abuse on the job and strict confidentiality clauses that accompany monetary settlement agreements.
Lawmakers in New York and New Jersey are working on new legislation to tackle the thorny issue and give power back to accusers.
The Harvey Weinstein scandal has prompted lawmakers to push to ban NDAs involving an employee in connection with discrimination, nonpayment of benefits and harassment.
(YANN COATSALIOU/AFP/Getty Images)
New York state Sen. Brad Hoylman and Assemblywoman Nily Rozic have refined an existing bill to prohibit any nondisclosure agreement involving an employee in connection with discrimination, nonpayment of benefits and harassment.
The bill is in the labor committee in the Senate. Hoylman said they have bipartisan support for the bill and he and his colleagues plan on taking it up in January.
“The secrecies around these agreements perpetuate cultures of harassment and abuse by ensuring the victims stay silent and the public remains in the dark,” he told The News. “The remaining employees continue to be at risk of unacceptable behavior by the same predator.”
The elected officials were moved to introduce the new language banning such NDAs “in light of recent revelations involving the Weinstein scandal,” he told The News.
“These confidential settlement agreements subvert justice. Not just for the victim but their colleagues who remain in jeopardy of harassment and worse in the workplace,” he said.
New Jersey state Senate Majority Leader Loretta Weinberg said she’s in the early stages of drafting similar legislation with bipartisan support.
“There are probably cases where the victim doesn’t want to go public. That’s something we’re attuned to. But by and large, I do not believe this kind of crime should be kept secret to enable the perpetrators to keep doing it,” she said.
“The real objective is to stop the behavior once and for all,” she said. “I really believe this is a watershed moment. I believe we need to take full advantage of this, to not only change the culture but also change the legal landscape so we don’t give people a way to cover up by giving out money.”
Weinberg still plans to discuss the issue with victim advocates and said anything she might introduce will not depend on a signature from Gov. Chris Christie, who leaves office in January.
The News spoke to more than a dozen lawyers and experts about the tension that exists between the best interests of each individual victim and the greater good.
“I think there needs to be middle ground,” California lawyer Lisa Bloom said. “I don’t think we can eliminate (NDAs) entirely, but we can start chipping away. Maybe institute a period of time after which they could expire – maybe five years.”
Bloom represented several O’Reilly accusers leading up to his dismissal from Fox News in April. She was later criticized for representing Weinstein against his first wave of accusers and eventually quit, calling her decision to work on behalf of Weinstein a “mistake.”
Women who have accused Harvey Weinstein of sexual harassment and assault
“If there’s an expiration, for sure the (settlement) numbers will go down, but that’s OK with me – and I make my living in this field.
“We have to balance the interests in getting high monetary values in settlements with the public interest in knowing who the harassers are,” she said.
“We’ve got to stop those serial predators.”
Many experts say victims – especially women limited by financial and social safety nets – would never step forward if a fully public forum was their only avenue to get desperately needed money for lost wages, therapy bills and other damages associated with abuse.
“Often a victim doesn’t want her family or friends or co-workers to know about the allegations she had made,” said lawyer Gloria Allred, Bloom’s mother, who is representing several Weinstein accusers.
“Often, if the victim will not agree to a confidential settlement, there will be no settlement. That means her alternative is filing a lawsuit, potentially waiting years for the case to reach a trial, undergoing vigorous questioning by highly paid defense attorneys and taking all the risk that is always inherent for anyone in a trial.”
Debra Katz, a Washington, D.C.-based lawyer specializing in sexual harassment cases, said she agrees with Allred.
“My job is to protect my client,” she said. “Those agreements often have a benefit to my client.”
She noted that employers must include a broad disclosure statement in any NDA stating that accusers still have the legal right to speak with law enforcement or any other government regulator.
If the NDA doesn’t state that, it could be deemed void, Katz said.
NDAs also allow her to craft statements that employers must follow if contacted with questions about her client, she said.
“(It) allows them to bridge to the next job,” Katz said. “Most people don’t want to be known that they’ve asserted claims … There are times when it is in the client’s interest.”