I read Professor Gilat Bachar’s excellent article, The Psychology of Secret Settlements, when I was wrapping up my own settlement negotiations and finishing a law journal article about my experience with harassment and retaliation by a former supervisor. While I was contemplating whether to sign a settlement agreement, I searched for research about complainants’ considerations and public perception about confidentiality agreements. Professor Bachar’s research found that both the severity of the wrongdoer’s misconduct and the victim’s financial status impact public support for Non-Disclosure Agreements (“NDAs” or “secret settlements”).1 Specifically, when the misconduct is more severe, and when the victim is more financially secure, the public opposes the use of NDAs; whereas when the misconduct is less severe, and when the victim is less financially secure, the public supports the use of NDAs. This public support, Professor Bachar argues, is important. If the public broadly endorses “sunlight laws” (laws limiting or altogether banning NDAs), these policies will be more effective, because less oversight and enforcement will be necessary. Professor Bachar’s empirical findings make important contributions in the area of employment litigation at a time when more states are enacting laws to restrict employers’ use of NDAs in employment discrimination cases.
In the #MeToo era, fifteen states have passed laws restricting or prohibiting the use of NDAs, either as a condition of employment or as part of a settlement agreement. However, as Professor Bachar argues, there are circumstances in which not just employers, but also mistreated employees, benefit from NDAs. Not only can victims potentially be “made whole” through financial settlements, but they may also seek confidentiality in order to avoid unwanted public attention and “victim blaming.” If one goal of the #MeToo movement, and the subsequent push to restrict the use of NDAs, is to affirm survivors, Professor Bachar asks, shouldn’t we respect their right to privacy, and support their desire to move on with their lives? Perhaps the obligation to blow the whistle on misconduct and to publicly identify harassers should not fall on victims. By restricting employers’ ability to trade money for silence, Professor Bachar argues, we may unintentionally disadvantage financially insecure victims who cannot afford to invest time and money in employment litigation.
Professor Bachar highlights two important tensions before introducing her research question, which asks, To what extent, and in what circumstances, do lay people support sexual harassment NDAs? The first tension is between the public’s interest in shining sunlight on misconduct, and the victim’s interest in confidentiality. The second tension is between the public’s right to know about misconduct, and its desire to know about it. Professor Bachar cites media reports from the 1980s about public hazards, which led to a wave of sunshine laws to prevent employers from concealing environmental hazards and dangerous products. She compares this to the recent rush to ban employment discrimination NDAs in the #MeToo era in order to protect the public against harassers.
In Professor Bachar’s study about public attitudes toward NDAs, she separated participants into four groups, in which they read a scenario depicting workplace sexual harassment and were then asked to approve or reject an NDA under the circumstances. The four categories were: sexual joke (low severity) and financially struggling victim; sexual joke and financially stable victim; exposing genitalia (high severity) and financially struggling victim; and exposing genitalia and financially stable victim. The study also asked participants to rate the relative importance of additional pieces of information to their support for an NDA, including whether the wrongdoer engaged in a pattern of harassment and whether the wrongdoer was terminated as a result of their behavior.
As I have detailed about my own experience, an individual’s decision about whether to sign an NDA in a case of workplace harassment can be very difficult. Beyond individual cases, Professor Bachar’s findings have important policy implications as we engage in public conversations about workplace misconduct in a variety of industries. First, if blanket confidentiality bans disproportionately harm financially unstable victims, it is important to create safeguards that protect victims’ ability to bargain. For example, laws could prevent employers from requiring NDAs in employment discrimination cases, but could still enable victims to choose them. Importantly, Professor Bachar argues that “allow[ing] victims to negotiate a settlement would help ensure confidentiality bans do not give rise to a chilling effect, discouraging victims who do not wish to speak out publicly from reporting the harassment they experienced.” (P. 40 n.1.)
Additionally, since Professor Bachar’s research suggests strong public opposition, among all political affiliations, to NDAs in cases of severe harassment, perhaps lawmakers advocating for sunshine laws should focus on banning NDAs in severe cases as an interim solution. However, as Professor Bachar concedes, it is important to define “severe” harassment, and further research is necessary. Professor Bachar’s findings also point to avenues for further study. She found that study participants seemed particularly interested in preventing “repeat offenders” from avoiding accountability for workplace misconduct. Further research should gauge how public support for NDAs is affected by information about the wrongdoer’s repeated misconduct.
Ultimately, the decision to sign an NDA, and the choice to speak publicly about one’s experience with workplace harassment, are deeply personal ones. I decided to share my story publicly in order to empower others. I was unwilling to sign an NDA that would restrict my writing, speaking, and advocacy. However, those are choices that not everyone would make. Professor Bachar’s research teases out some important factors—severity of wrongdoing and financial status of victims—that policymakers should consider as they explore the implications of sunshine laws for employment NDAs. However, both #MeToo advocacy work and legislation should consider the interests of marginalized victims, who may weigh confidentiality versus publicity concerns differently and be the least able to speak up for themselves.
- Professor Bachar uses the term “victim” rather than “survivor,” so I also use that terminology in this review.
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