As the Weinstein Company releases Harvey Weinstein’s victims from their NDAs, we hear from women who still cannot speak out.
On 20 March, the Weinstein Company announced that it had filed for voluntary bankruptcy and would be ending all its non-disclosure agreements (NDAs) relating to sexual misconduct claims. “Since October, it has been reported that Harvey Weinstein used non-disclosure agreements as a secret weapon to silence his accusers,” the company said in a statement. “Effective immediately, those ‘agreements’ end.”
The firm insisted that it did not want to prevent “individuals who suffered or witnessed any form of sexual misconduct by Harvey Weinstein from telling their stories… No one should be afraid to speak out or coerced to stay quiet.”
It’s a positive move, even if the nobleness of the gesture is somewhat undermined by the timing. As the company acknowledges, the world has known about Weinstein’s prolific use of non-disclosure agreements since last autumn, and it seems unlikely that none of his senior colleagues were aware of the issue prior to that. You have to wonder why his former firm did not dispense with these agreements until it quite literally had nothing left to lose, and if it would have released people from these reputation-protecting contracts if it had any business left to protect.
But while Weinstein’s victims and former employees are now free to speak publicly about what they witnessed or went through, there are countless other women (and men) around the world who are still bound to silence by NDAs. And despite the fact that we now know much more about these shadowy agreements than we once did, it seems very unlikely that they will ever stop being used in legal proceedings in the UK.
Also known as confidentiality clauses or ‘gagging’ agreements, NDAs are frequently used to prevent people from speaking out about abuse, exploitation, discrimination or mistreatment they suffered at the hands of their employers. The word ‘countless’ is appropriate when describing the number of people constrained by these agreements, as their inherently secretive nature makes it impossible to accurately estimate how many are currently in effect.
In the UK, for example, it’s believed that the scale of workplace sexual harassment and maternity discrimination is severely underestimated as a direct result of confidentiality agreements. This is because when women who have lost their jobs settle with ex-employers out of court, the settlement terms almost always include a mandatory gagging clause, preventing them from ever discussing their experiences in public.
“The vast majority of cases that involve sexual harassment settle before they get to a tribunal or court,” explains Claire Dawson, head of employment law at Slater and Gordon Lawyers, who specialises in workplace sexual harassment cases. “And it’s fairly typical that a woman who has been sexually harassed is going to sign up to a confidentiality clause in any settlement that she enters into with an employer.”
It’s important to note that not all non-disclosure agreements are nefarious. They’re a common, even everyday feature of business in many industries, and can be introduced for an almost limitless number of innocent reasons (a company might want to protect a new product idea, for instance, or prevent employees from disclosing details of its finances).
Even if the reason behind a non-disclosure agreement is negative, it’s not always the case that women have to be coerced into signing them. After an unpleasant experience with an employer, many people enter into a settlement agreement willingly – fully aware that it contains a confidentiality clause – if it allows them to avoid taking a case to a court or employment tribunal.
“Settlement agreements are usually driven by both parties, including the individual concerned, because everyone tends to want to resolve this quietly,” says Dawson. She adds that in some industries, such as financial services or the NHS, NDAs can contain a carve-out for a “whistleblowing disclosure” which allows people to break the agreement if they want to speak out about a matter of public interest. In addition, there are moves to ensure that any individual signing an NDA is explicitly advised that it does not prevent them making a disclosure to a regulator or law enforcement, such as the police.
But NDAs can also leave women feeling voiceless and thwarted - and, while there is nothing illegal about the agreements themselves, they can and have been used to cover up appalling behaviour and even alleged crimes. At the Presidents Club charity dinner earlier this year, hostesses were required to sign NDAs that seemed to bar them from discussing the sexual harassment they experienced and witnessed (the agency that hired the hostesses later said that the NDAs did not prevent them reporting any crimes). And in October, Weinstein’s former assistant Zelda Perkins broke an NDA to speak about the producer’s alleged rape of a colleague.
Perkins had quit her job at Miramax in 1998, after a young female co-worker told her that she had been raped by Weinstein. She was paid $168,000 (£125,000) in exchange for signing an agreement that stated she wouldn’t discuss the alleged sexual assault with anyone, not even her therapist. “If you have the power and the money to create agreements that cover up a very serious criminal action, then I dread to imagine what other things are being covered up,” Perkins told BBC Newsnight.
This gets to the heart of why NDAs feel so ethically murky. In essence, they allow those with vast monetary resources to behave appallingly and even illegally, safe in the knowledge that those affected will not have the financial clout to take them to court.
Sarah*, 35, was working as a human resources director at an internationally recognised FTSE 100 company in 2016 when she went on maternity leave to have her first child. Shortly after she returned to work, her job was ‘regraded’ to a more junior level, and she was made redundant.
She hired a lawyer, who advised that she had a potential sex discrimination case. But she wasn’t sure she could face going to court. “The challenge is the length of time and emotional stress and effort it would have required,” she says. “Imagine me versus that huge corporation – the amount of money it would have cost would have been staggering. And in the meantime, I wouldn’t really have been able to get another job because all of my references would go back to my previous employer.”
Sarah visited a female QC in London, who recommended that she settle out of court. But within three weeks of her signing the settlement agreement, which contained a confidentiality clause, the company reinstated her old role – and filled it with a man.
“I knew at that point that it was absolutely about my personal situation,” she says. “But once I’d signed that settlement agreement there was very little I could do.”
The experience was so stressful that Sarah even started to resent her baby daughter. “I went through a period of thinking: ‘What a stupid thing I did; it was all OK before I had a baby. I should have just kept it all lovely.’”
Since then, she has seen the company win awards for their global maternity policy and be praised in the media as a woman-friendly employer. It stings. “I could give you the names of 15 female employees who had children and were exited under settlement agreements in the last two years,” she says. “There have definitely been times when I’ve thought, gosh, I really have to go to the press and just risk that [the company] sues me.”
But as yet, she hasn’t spoken out, largely because of her anxiety about what it could do to her professional reputation. “It isn’t just that they would sue me, it’s that I’d potentially damage my career for the next 10 to 20 years,” she says. “My industry at director level is very small, so I felt I had to be nice about them – even though they’d completely screwed me over and I signed that settlement agreement – because having a reference [from your last employer] is so important.”
This internal conflict – the desire to speak out against injustice, versus the need to protect one’s professional reputation – was also reported by many women victimised by Weinstein, who knew that he had the power to make or break careers in Hollywood. Sarah calls it “the Weinstein syndrome”.
Like many women in Weinstein’s world, Camila*, 32, knows what it’s like to be silenced by an NDA after attempting to take on a man with immense power and wealth. A London-based personal assistant who has worked for A-list musicians and world-famous artists, she was hired by an investment banker to work as his house manager in 2015.
She was used to signing confidentiality agreements: “The kind of people that I work for, you sign an NDA as soon as you walk through the door,” she says. But when she started working for the banker, no such agreement materialised. He was going through a high-profile divorce and moving house; she’d known his family for years. The combination of the chaos and his trust in her meant that the fact she’d never signed an NDA was overlooked for several months.
Camila’s relationship with the banker soured once he started dating a woman – a former employee of his – who had long disliked her. All of a sudden, he demanded that Camila sign a confidentiality agreement. The terms of the agreement confused her, and she asked if she could consult a lawyer before signing. He fired her on the spot.
It was here that things got sinister. The banker insisted that Camila return a laptop he had given her, hand over the password for the personal Gmail account she’d used while working for him, and sign a retrospective NDA. “I was like, you can take the laptop,” she says. “But I’m not giving you my email logins.” And despite the fact that she had no intention of going to the press – as she points out, her career depends on a scrupulously discreet reputation – she was loathe to sign an agreement that would bind her to someone who had treated her so badly.
Camila went to a solicitor, who informed her that she had no obligation to sign a confidentiality agreement. But in the meantime, the banker began a campaign of harassment that lasted for months. His staff would phone her multiple times a day, threatening to call the police and accusing her of wanting to sell stories about him. She received notifications from Google alerting her that people were trying to hack into her email, and became increasingly paranoid that she would be accosted on the street, or have her home broken into.
“It was too much for me,” she says. “My head was going everywhere; I was so stressed out I lost hair. I started getting really scared to leave the house by myself.”
Then, one day, Camila was contacted by the banker’s office, asking her to come and pick up her copy of the NDA she’d signed. She was horrified. “I was like, it’s impossible.”
She collected the contract, which did indeed bear her signature, and took it to a forgery lawyer. He confirmed that the signature was fake and advised that she could take the banker to court. But she’d already spent £3,500 on solicitors’ fees – much more than she could afford. When she heard that the banker had begun calling people he knew, warning them never to hire her, she gave in. The threat to her professional reputation was too great.
“I was like, that’s it: I can’t do this,” she says. “He had a whole team of lawyers barking at me, and people trying to hack into my email, and I was scared, and every time I called a lawyer to ask a question it cost me about £100. And so I let him win.”
Camila’s story, involving a fake non-disclosure agreement, is an extreme one. But it’s also not unusual for women to feel, like her, that they simply don’t have the emotional strength or financial backing to fight against signing an NDA.
Danielle Ayres is a senior solicitor at Gorvins Solicitors in Manchester who specialises in maternity, pregnancy and sex discrimination cases. She says that she frequently meets women who want to take their employer to a tribunal: “I get a lot of women saying, ‘I’ve been treated really badly and I want to be able to tell people that I’ve been treated in that way.’”
However, many of these women end up feeling “that they’ve got no other choice” but to sign a settlement agreement, Ayres says, even if they are desperate to speak out about the discrimination they faced. They may realise that the money they’d receive in a settlement exceeds the financial compensation they’d likely be awarded at a tribunal, or they might not be able to afford legal representation.
“Money is usually the most important thing for the individuals I advise, especially if they’re losing their job and they’re pregnant or have a new baby,” Ayres says. Exhausted, these women often end up deciding to simply “draw a line under it and move on”, signing away their right to speak out in the process.
In the aftermath of the Weinstein revelations, it seemed as though the tide may have been turning against non-disclosure agreements. But even though the government announced earlier this year that it would scrutinise the pros and cons of using NDAs in sexual harassment cases, it seems unlikely that confidentiality clauses will ever really fall out of favour on this side of the Atlantic.
“I suspect ‘the Weinstein effect’ will be of little effect in the UK,” says Andrea London, partner and head of employment at law firm Fletcher Day. The government’s review of NDAs is unlikely to “include wholesale revocation of the inclusion of NDA provisions contained within settlement agreements”, she observes, and will probably instead focus on increasing legal protections against sexual harassment more generally.
Both Sarah and Camila understand why NDAs are important, and neither of them want to see them scrapped entirely.
“As a HR professional, I think there is a time and a place for them, and for some situations and some people they work well,” says Sarah. “But when they are used in manipulative, bullying scenarios – when they are used to cover up discrimination – then you should have recourse to speak out, even if you have signed one.”
Camila agrees. “The kind of people that I work for, I know I have to sign NDAs. I don’t mind, because it’s part of working as a PA. But you should still be able to protect yourself.” If she ever comes into a lot of money, she has promised herself that she’ll take the banker to court.
“Sometimes I think, I’m going to play Euromillions today, and if I win I’m going to take him on,” she says. “Just to show him that this is not right.”
* Names have been changed. Images: Getty Images / Rex Features / Pexels