Revelations that Harvey Weinstein and Bill O’Reilly entered into serial confidential settlements with women who claimed they were sexually harassed in the workplace have brought a great deal of attention to non-disclosure agreements and confidentiality and non-disparagement clauses in settlement agreements. Indeed, this increased attention has lead lawmakers in certain states to propose changes in the law to address concerns about secrecy, particularly about sexual harassment.
A recurrent question raised by this news is: If you have signed one of these types of agreements, are you prevented from reporting or pursuing claims for unlawful conduct? The general answer is that these agreements cannot prevent you from addressing unlawful conduct in certain ways, but you should get advice from an employment lawyer on what options you have.
Non-disclosure agreements are generally signed by employees as a condition of obtaining a job and at the commencement of their employment. These agreements are primarily designed to prevent the disclosure of not just trade secrets but also other proprietary and non-public information to which one gains access as an employee. Although there are terms that are commonly found in this type of agreement, the language of particular agreements can vary widely. Some language might suggest or raise questions about whether you can report or take action to stop unlawful conduct, such as sexual harassment or other forms of employment discrimination. If you have signed a non-disclosure agreement, have experienced or observed employment discrimination (or other unlawful conduct), and have questions about what options you have to deal with that conduct, you should ask an employment attorney to review the agreement and advise you on what you can do.
Confidentiality and non-disparagement clauses are often found in settlement and severance agreements between individuals and their employers. The purpose of a confidentiality clause is generally to ensure that the existence of the settlement agreement and its terms are kept private and known only to the parties. While there are common terms found in these types of clauses, they too can differ and contain language that appears to extend confidentiality obligations beyond the terms of the agreement. Non-disparagement clauses generally are intended to prevent the parties to a settlement agreement from speaking ill of each other. The employer often will seek such a clause to prevent the employee from making derogatory statements regarding the employer, and employees agreeing to such a clause should seek a reciprocal obligation. What constitutes a disparaging statement prohibited by a clause requires careful consideration of the words used in the clause.
Regardless of the purpose or interpretation of these types of agreements, none of them can prevent an employee from reporting suspected unlawful sexual harassment, acts of discrimination, and other types of unlawful conduct, such as defrauding the government. Courts have held that, at a minimum, an agreement cannot interfere with the government’s ability to enforce the law, including the Equal Employment Opportunity Commission’s (EEOC) enforcement of Title VII and other anti-discrimination laws: “Clearly, if victims of or witnesses to sexual harassment are unable to approach the EEOC or even to answer its questions, the investigatory powers that Congress conferred would be sharply curtailed and the efficacy of investigations would be severely hampered.” E.E.O.C. v. Astra U.S.A., Inc., 94 F.3d 738, 744 (1st Cir. 1996). As well, agreements between an individual and an employer—even settlement agreements where an employer makes payments to an individual—can not interfere with either the ability of an employee to file a charge of discrimination or the authority of the EEOC to act on such a complaint to enforce antidiscrimination laws.
Finally, you may well have the right and opportunity to pursue other options in response to suspected discrimination, including private individual lawsuits or class actions. In short, you should not assume that an agreement with your employer prevents you from acting to stop sexual harassment and other forms of discrimination. Instead, seek the advice of an employment discrimination lawyer and learn about your options.