Balancing Private and Public Interests in the Disclosure of Sexual Harassment Information

Abstract

Legal ethicists, advocacy groups, and politicians have called for greater restrictions on the use of nondisclosure agreements (NDAs) when parties resolve sexual assault and sexual harassment claims, and recently broad bans on the use of NDAs have been put in place. However, as shown by the original empirical research reported here, most members of the public see nondisclosure as appropriate in some cases and do not oppose bargaining over privacy. A large-scale survey found that public concern about NDAs depended on a variety of factors, including the level of compensation paid to the claimant to settle a matter, whether both parties had counsel, and whether the NDA contained an exception allowing disclosure if the accused harasses again. Furthermore, most respondents believed that the disclosure of information should be determined on a case-by-case basis, even where the alleged behavior was quite serious. NDA reforms that preserve the right of parties to bargain over privacy but condition that privacy on the accused’s good behavior would better balance private and public interests in sexual harassment information than reforms that bar any use of NDAs.

Keywords: nondisclosure agreements, confidentiality agreements, sexual harassment, privacy