In the past few years, vast numbers of people have spoken out about New York sexual harassment. Before allegations of widespread harassment and abuse by a prominent Hollywood producer sparked the #MeToo movement in late 2017, a series of allegations emerged a year earlier in New York City. Sexual harassment lawsuits against a major news network and its CEO resulted in the termination of several major figures, including the CEO himself. The public is not aware of the details of the settlements, or many details of the cases themselves, because of non-disclosure agreements (NDAs) signed by the plaintiffs. NDAs are fairly common as a way for employers to protect trade secrets, but they can also serve to keep the details of sexual harassment lawsuits out of the news. This might protect employers’ interests, but as the cases at the heart of #MeToo suggest, NDAs can place employees at risk by denying them important information. A former anchor for the news network has asked to be released from the NDA she signed as part of her settlement.
Antidiscrimination laws like the New York State Human Rights Law prohibit discrimination in the workplace on the basis of sex. This includes situations when submission to sexual demands is a condition of employment, known as quid pro quo sexual harassment; or when unwelcome sexual conduct creates a hostile work environment. The claims arising from #MeToo often describe people in a position of power, usually but not always men, using that power to coerce employees, often but not always women, into sexual situations. This could involve demands for sexual contact of some sort, or a work environment filled with sexual banter.
NDAs have traditionally sought to protect a company’s trade secrets by restricting current and former employees’ ability to disclose confidential or proprietary information. NDAs that prohibit disclosure of sexual harassment allegations exist on shakier legal ground. The National Labor Relations Board ruled in 2002 that employers cannot generally prohibit their employees “from discussing their sexual harassment complaints among themselves.” The NDAs that could be enforceable essentially involve a contractual exchange: the employer pays a settlement, and the employees signs an NDA. If the employee violates the NDA, they could be obligated to return the entire settlement amount. It would not be overstating it to say that this involves buying people’s silence. New York law sets limits on NDAs in sexual harassment cases, but allows them in certain situations.
The former news anchor mentioned earlier filed suit against the CEO of her network in July 2016. The lawsuit was filed in a New Jersey state court, but alleges violations of New York City’s antidiscrimination law. It describes alleged conduct that would constitute both quid pro quo sexual harassment and hostile work environment. Little more is known about the case, however, since she signed an NDA as part of the settlement of the case. Now, she is asking the network to release her from the NDA in an opinion piece published by the New York Times in December 2019.
New Jersey law now prohibits the kind of NDA that she signed in 2016. Perhaps ironically, the law only applies to settlement agreements signed on or after the effective date in March 2019.
The knowledgeable and experienced employment lawyers at Phillips & Associates represent New York City employees, former employees, and job applicants in claims of sexual harassment based on sexual comments and other inappropriate behaviors under municipal, state, and federal law. Please contact us online or at (212) 248-7431 today to schedule a free and confidential consultation to see how we can help you.