Nondisclosure has its limits

Since allegations of serial sexual harassment by Harvey Weinstein began to emerge, much has been said about the “conspiracy of silence” surrounding the film producer’s predatory behaviour.

The phrase is only partly appropriate. In many cases, it turns out, silence was not so much a conspiracy as a matter of contractual agreement — secured by means of large payouts and legal intimidation.

It has become standard practice to include confidentiality obligations when an employment dispute is settled out of court. These prohibit both parties from discussing the terms of the settlement. They are usually accompanied by nondisparagement obligations, which prevent either party smearing the other. The idea is that this is an agreement between equals: both sides have legal representation, often paid for by the employer. But the reality can feel very different, especially in a case of sexual harassment, which is essentially about the abuse of power.

The prevalence of confidentiality clauses is a problem, at least in egregious cases of sexual harassment or other forms of workplace misconduct. The balance of power seems tilted against the individual; and the public interest is at stake, since silence makes it possible for such harassment to continue, sometimes for years.

This does not make it a simple problem to fix. Confidentiality clauses and nondisclosure agreements exist because in many cases, it suits all parties to draw a line under a dispute and move on. They protect corporate reputations but they also protect individuals against vexatious claims and claimants who fear they will gain a reputation for trouble making. They also allow people money and time to rebuild their careers.

However, it should be mandatory for employers to make it clear, when they reach a settlement, that it does not override the legal protection afforded to whistleblowing or prevent employees answering queries from law enforcers and regulators. London, October 25.