Reconsidering Confidential Settlements in the #MeToo Era

Abstract

With the #MeToo movement, the societal and personal harm resulting from the accepted norm of confidential settlements and NDAs has been exposed. As agreements have been breached and outrageous conduct exposed, there is evidence that the courts, and certainly employers and the public, are taking allegations of harassment more seriously. State and federal legislators have turned their attention to the problem of confidentiality, resulting in the adoption of new laws in twelve states and at least a dozen pending bills, including federal legislation. This symposium article examines whether there has been a significant shift in norms relating to the confidentiality imperative from the perspectives of both the complainant and the employer. It also analyzes three of the most significant enacted statutes, all of which have serious limitations and loopholes, and proposes guiding principles that could serve as a template as more jurisdictions address this issue.

Keywords: MeToo, discrimination, employment, legislation, confidentiality, harassment