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Jeffrey S. Klein, left, and Nicholas J. Pappas, right, of Weil, Gotshal & Manges. Jeffrey S. Klein, left, and Nicholas J. Pappas, right, of Weil, Gotshal & Manges.

In response to the #MeToo movement, a number of state legislatures and Congress have enacted legislation to address their concerns regarding sex-based inequities in the workplace. One area of particular focus has been the use of non-disclosure provisions in settlement agreements that resolve allegations of sexual harassment, other forms of harassment, and discrimination. Critics of non-disclosure provisions argue that employers who have used these types of provisions may inadvertently promote a culture of silence around sexual harassment and sex-based discrimination in the workplace, thus enabling the individual perpetrators of harassment and discrimination to avoid accountability. On the other hand, many employers legitimately use non-disclosure provisions to protect the victims of harassment and discrimination, as well as to avoid negative publicity resulting from non-meritorious claims. Without the protection of a non-disclosure agreement, employers may more frequently elect to contest such non-meritorious claims of discrimination or harassment to avoid negative publicity emanating from a publicly disclosed settlement.

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