The Law Journal Editorial Board’s commentary opposing the legislation making nondisclosure agreements unenforceable against the victims of harassment and discrimination misses the point (“Banning Nondisclosure Agreements May Hurt More Than Help,” New Jersey Law Journal, July 30, 2018). The law does not “compel victims to sacrifice their own privacy” as the editorial claims. Nothing in the law requires an employee to reveal her harassment or settlement. And the employer never wants to reveal it—that’s why for the 38 years that I have represented employees it has always been, without exception, the employer who demands an NDA.
What the law passed by the New Jersey Senate and pending in the Assembly does do is give victims their voices back. It makes it illegal for an employer to tell a victim of harassment or discrimination to just take some money and shut up.
CBS head Les Moonves is the latest powerful man to be accused of decades of harassment of women and retaliation against those who reject him or complain. Harvey Weinstein, Roger Ailes, Bill O’Reilly, Matt Lauer, Bill Cosby … the list gets longer and longer, of men who have ruined women’s careers and harassed unabated for years and years, partly because NDAs prevented women from telling their stories. The #MeToo movement has shown that the editorial is wrong. Women do want to share their stories. They are empowered by other women speaking out. Many women with NDAs have spoken eloquently against them, most recently in the New York Times review of the MeToo movement.
Years of lawsuits and settlements have not made a dent in sexual harassment, which the editorial calls a “private interest.” But the public has an interest in stopping workplace abuse—our Supreme Court has stated this repeatedly. The current climate shows us that women are tired of being paid some money to leave work and shut up while the harasser stays to harass again. Without NDAs employers will be forced to actually address the problem—and the “problem” isn’t the woman, which is how women who complain are treated now.
Cases still settle, and life goes on in the public sector without NDAs. The private sector can adapt as well, and maybe grow to see that women are not expendable, men are not more important, and harassment is bad business.
Nancy Erika Smith is a partner with Smith Mullin in Montclair. Her practice is dedicated to employment law.