Sexual Harassment NDAs: Privacy, Complicity, and the Paradox of Blackmail
USC CLASS Research Papers Series No. CLASS19-29
USC Legal Studies Research Papers Series No. 19-29
28 Pages Posted: 30 Aug 2019 Last revised: 9 Sep 2019
Date Written: August 28, 2019
Harvey Weinstein and the #MeToo movement focused public attention on both sexual predation and the non-disclosure agreements (NDAs) that help it to persist. NDAs help repeat perpetrators avoid detection and punishment, increasing the risk of harm to future victims. At the same time, NDAs are thought to have benefits. They protect informational privacy interests of both perpetrators and victims, facilitate dispute settlement, and provide victims with larger settlement awards.
This article offers moral arguments against the supposed virtues of NDAs. Guilty perpetrators are not entitled to informational privacy about their wrongs. It might be thought that NDAs protect perpetrators from excessive social punishment in ways comparable to felony expungement statutes. But this analogy is not persuasive. The privacy interests of people who are falsely accused of wrongdoing are somewhat stronger. But NDAs are an excessively broad way to protect this interest.
While victims have an interest in not being identified, this does not justify taking money in exchange for keeping the perpetrator’s secret. Victims who agree not to disclose in exchange for money differ from victims who remain silent without payment because the former are complicit in the harassers’ wrongdoing and because they sometimes offer to violate a moral duty in exchange for payment. In advancing these claims, I draw on theories about the immorality of blackmail, which seek to explain why it is sometimes wrong to offer silence in exchange for payment. I also provide reasons to doubt that NDAs are important for facilitating dispute resolution and guaranteeing adequate victim compensation.
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