Ending Secret Settlements Could Stop the Next Harvey Weinstein

In a little more than two weeks, more than 50 women have accused Weinstein of harassment or assault. The allegations span decades, leaving many to wonder how this could have remained an open secret for so long. One reason? Legal settlements that bar victims from speaking publicly about their horrific experiences.

On Thursday, California state Sen. Connie Leyva announced her plan to introduce legislation early next year to ban the kinds of secret agreements that Weinstein and fellow alleged sexual predator Bill O'Reilly entered into with the women they targeted.

In a statement, Leyva said that confidentiality provisions in settlement agreements "can jeopardize the public—including other potential victims—and allow perpetrators to escape justice just because they have the money to pay the cost of the settlements. This bill will ensure that sexual predators can be held accountable for their actions and ideally prevent them from victimizing others."

According to the New York Times investigation that looked into a slew of allegations of sexual harassment and assault against Weinstein, the former studio executive reportedly settled with at least eight different women over accusations of misconduct. One of those women, Lauren O'Connor, worked for Weinstein; in 2015, she sent a memo to the company's board of directors to bring to light her boss' misconduct, adding that she felt "sexualized and diminished." Days later, the Times reported, she reached a settlement with Weinstein, and withdrew her complaint from Human Resources.

Bill O'Reilly, too, allegedly used his immense power and wealth to prevent his accusers from going public. In April, the Times broke the story that at least five women had received financial settlement from either 21st Century Fox, the parent company of Fox News, or O'Reilly, its former media darling. The settlements totaled to about $13 million, the Times reported, and the women who signed them had to agree not to pursue legal action or speak out about their experiences of being sexually harassed or witnessing inappropriate behavior.

Ellen Berrey is a professor of sociology at the University of Toronto and an affiliated scholar of the American Bar Foundation. She tells Broadly that secret settlements are "a really important tool for employers to maintain their power over workers."

"In employment discrimination cases, like sexual harassment cases, the most common outcome is through settlement," Berrey explains. "Typically, it's a strategy the employer uses to just shut down the case and shut up the employee. They don't want to be bothered with the lawsuit going further. There might be some risk in the organization—the bad behavior happened—but more often than not, they're doing a cost-benefit analysis of saying, 'What's it going to cost us to fight this tooth and nail,' and [deciding] it's going to be cheaper to give this person a few thousand dollars and be on their way."

Berrey adds: "The other thing about a settlement is that there's no admission of guilt by the organization. That's another way it functions as a tool of corporate power to deflect and minimize."

The legislation that Leyva plans to introduce next year has yet to be written, but Laura Beth Nielsen, a research professor at the American Bar Foundation and sociology professor at Northwestern University, says implementing such a law would be complicated. "It is totally possible for a state or federal government to decide that sexual harassment settlements should not be secret," she tells Broadly. "As a policy matter, the questions are huge: How transparent should it be? Should there be a searchable list of companies? Should it include the name of the accuser? (This would impact future employability.) Should it be all claims, even those that result in no settlement?"

One repercussion of banning secret agreements, Nielson says, is that companies lose the incentive to settle and instead may want to go to trial—something a victim may not want to endure.

Whether or not Leyva's proposal ultimately gets signed into law, Berrey says banning these confidential provisions would create more transparency in the workplace, resulting in a much more safer and egalitarian environment for women and other vulnerable employees. More often than not, she explains, perpetrators remain employed, and thus are shielded by these secret agreements.

"For people who've been targets of discrimination, it means that they don't know that a person could be a risk, they don't know they're going into a workplace environment where there are not only sexual harassers but also management who will circle the wagons and enable that harassment to continue," Berrey says. "[This kind of secrecy] does a huge disservice to women and to all kinds of people who are targets of discrimination when they can't fairly and clearly assess whether a workplace is a safe, supportive place to be employed."