USA TODAY International Edition
Opposing view: Confidentiality helps protect victims, too
Agreements to keep confidential the settlement of disputes between private parties are not done solely to protect the accused. In instances of sexual harassment — as opposed to criminal sexual assault — removing the opportunity for parties to keep settlements confidential could have a material chilling effect on protecting the victim.
Victims of sexual harassment should not be forced to choose between keeping silent and addressing their grievances publicly. Victims should not be forced to confront the public scrutiny and potential retaliation that often comes with public redress. The choice between public and private should be theirs to make.
It is naïve to think that some potential employers will not quietly avoid hiring an employee who has made claims against his or her prior employer. Such stigma may be diminishing as more victims relate their stories. And rules that leave confidentiality as a choice will allow some victims to relate their stories. But it is too soon to bar confidentiality as an option. Confidentiality should be preserved as a choice for both parties.
Parties settle disputes for a variety of reasons unconnected to the underlying facts, including the time and expense in fighting their way through the legal system. Most settlement agreements contain a clause acknowledging that the parties are not admitting fault, but are settling to avoid any further action.
Laws making settlements public would force victims into litigation where claims of sexual harassment could be met by counterclaims for defamation. For example, filmmaker Brett Ratner, recently accused on Facebook of sexual harassment, quickly and predictably turned the tables on his accuser, filing suit for defamation, seeking more than $75,000. Disputes aired out in public can lead to attacks back against the alleged victim. Confidentiality potentially insulates victims from such attacks.