Breaking the Silence: Good Riddance to Non-Disclosure Agreements in the #MeToo Era

It is not always about the commission or result of a crime; sometimes the actions taken to cover the crime up can lead to further disastrous outcomes. After ground shaking revelations over the past year about the famed film producer Harvey Weinstein and his multiple sexual harassment scandals, followed by allegations about many other prominent figures in the Hollywood scene, it is past due that state legislatures consider outlawing non-disclosure agreements (“interchangeably, NDA”) related to these crimes. While the rich and powerful have long cowered behind the shield (or sword) of draconian non-disclosure agreements that limit the ability of a victim or witness to seek redress, the walls may be tumbling down around high status perpetrators of sexual misconduct in the #MeToo Era.

This Note proposes that NDAs involving allegations of sexual assault and harassment, should be outlawed outright in order to stifle barriers that protect wealthy abusers and punish victims. In the alternative, legislatures and courts should impose negative presumptions against the enforceability of such agreements under all circumstances, in order to remove leverages that powerful institutions possess over victims and witnesses of sexual assault and harassment.

It is not always about the commission or result of a crime; sometimes the actions taken to cover the crime up can lead to further disastrous outcomes. After ground shaking revelations over the past year about the famed film producer Harvey Weinstein and his multiple sexual harassment scandals, followed by allegations about many other prominent figures in the Hollywood scene,[2] it is past due that state legislatures consider outlawing non-disclosure agreements (“interchangeably, NDA”) related to these crimes. While the rich and powerful have long cowered behind the shield (or sword) of draconian non-disclosure agreements that limit the ability of a victim or witness to seek redress, the walls may be tumbling down around high status perpetrators of sexual misconduct in the #MeToo Era.[3]

Where We Are: The #MeToo Movement

In the Fall of 2017, many people—mostly women—on the social media website Twitter broke their silence on their experiences with sexual harassment and assault.[4] The modern crusade against sexual harassment and assault is now synonymous with the phrase “#MeToo.” The movement has been indiscriminate in its reach, alleging varying levels of egregious conduct against once notable and otherwise laudable people, including entertainers,[5] reporters,[6] politicians,[7] jurists,[8] and a former leader of the movement itself.[9]

The conduct of the above-described perpetrators could be described as ranging from mild, though impactful, workplace sexual harassment,[10] to shockingly serious conduct that reached criminal levels.[11] What the voluminous reports of sexual misconduct have revealed is that this pandemic is present in all industries and infects all regions of the country. One legal concept that pervades many of these harrowing reports is that of the non-disclosure agreement which purports to silence witnesses and victims of sexual harassment and abuse, normally in exchange for money.[12]

Where We’ve Been: The Legality of Non-Disclosure Agreements and Their Historical Backdrops

An NDA is not per se a dirty thing in the law. There are a great deal of reasons why employers might include such a clause in an employment contract or a severance agreement.[13] In non-sexual misconduct circumstances, Courts upholding these agreements point to the damages a company or individual could face if its secrets were to get out and the unfair advantage its competitors could obtain due to disclosure of sensitive information.[14]

NDAs are pervasive in corporate culture[15]. For the uninitiated, free documents that constitute NDAs are available online on self-help legal aid websites such as Rocket Lawyer[16] and LegalZoom.[17] Both of these websites offer fully customizable and generally comprehensive non-disclosure agreements that could protect both an employer and an employee from future legal woes.

When breaking news stories involve NDAs, the news is rarely good for the parties involved. Take, for example, online university Purdue Global’s non-disclosure agreements that it requires its professors to sign. These NDAs have deprived the academic community of valuable resources by preventing teachers from sharing classroom methods, syllabi, and other course materials.[18] Some of President Donald Trump’s political woes have also been marred by non-disclosure agreements; President Trump has been quick to point out the existence of these agreements, even signaling that “wacky Omarosa [Manigault] already has a fully signed Non-Disclosure Agreement.”[19] Though, the validity of President Trump’s White House non-disclosure agreements have been called into question by several scholars as repressing protected speech under the First Amendment.[20]

More nefariously, however, powerful individuals have used non-disclosure agreements to silence victims and witnesses of sexual assault and harassment to their gain in exchange for a sum of money. It was even discovered, a former #MeToo leader, Asia Argento paid fellow actor Jimmy Bennett a sum of $380,000 in exchange for his silence as to an allegation of sexual assault when he was 17-years-old (Argento was 37-years-old at the time).[21] In addition to buying Bennett’s silence, Argento also purchased a photo of the two lying in bed together and obtained the copyright to that photo—seemingly the only proof that Bennett possessed of the assault.[22] Yale Law Professor Vicki Schultz has written extensively about sexual harassment and has identified “[o]rganizational tolerance, coverups, and nondisclosure agreements” as “just another sign of . . . hyper-masculine workplace success and stardom.”[23] By nature, these types of non-disclosure agreements hamper speech, protect serial abusers who have the wealth to afford multiple agreements, and fail to uphold any public policy rationale.

Where We Can—and Should—Be: Outlawing NDAs in Cases of Sexual Harassment and Assault

With the recent exposure of dozens of high-profile stories regarding incidents of alleged sexual misconduct perpetrated by political figures, prominent men (and some women) in the business and entertainment communities, the concept of the non-disclosure agreement has rightly come under attack.[24] Yale Law Professor Ian Ayres has taken aim at these types of NDAs and has purported to take an “intermediate” approach to satisfy both the goals of the accused and survivors of sexual misconduct.[25] Professor Ayres’s test would enforce agreements only “(1) if they explicitly describe the rights which the survivor retains, notwithstanding the NDA, to report the perpetrator’s behavior to the Equal Employment Opportunity Commission (EEOC) and other investigative authorities; (2) if they explicitly make the accuser’s promises to not disclose conditional on the perpetrator not misrepresenting any of the survivor and perpetrator’s past interactions; and (3) if the underlying survivor allegations are deposited in an information escrow that would be released for investigation by the EEOC if another complaint is received against the same perpetrator.”[26]

Professor Ayres’s test, while laudable in its intentions, is still incomplete. First, the test pertains only to sexual harassment in the employment context under the Title VII hostile work environment framework.[27] Additionally, and more importantly, Professor Ayres’s proposal still contemplates the validity of the non-disclosure agreement as a middle ground.[28] Non-disclosure agreements could still have been upheld in the case of University of Michigan gymnastics doctor Larry Nassar, who was accused of sexually abusing hundreds of young women and girls in his care, so long as record keeping requirements were met and appropriate EEOC notices were made to relevant employees. Nassar has since been convicted of multiple counts of sexual assault and possession of child pornography and was sentenced a life sentence in prison.[29]

As this Note questions the future existence of non-disclosure agreements in these contexts, Professor Ayres’s test, runs counter to the policy perspective of the authors. Rather, the Note endorses the position of some states that have outright outlawed non-disclosure agreements in the contexts of sexual assault and harassment.[30] The rationale behind some of these state bans are rooted in policy arguments that find the continued enforcement of non-disclosure agreements as inimical to the public good—thereby covering up stories of sexual misconduct by the rich and powerful.[31]

Although the right to contract is a long-recognized pillar of American jurisprudence,[32] it is not limitless. Courts commonly strike down various contractual provisions when, if enforced, the conclusion would run counter to public policy.[33] Many state statutes contain elemental provisions that require courts to consider whether contractual terms violate public policy goals of the state’s legislature.[34]

One state that has taken the lead on the legislative charge against onerous non-disclosure agreements is California. Senator Connie M. Leyva first addressed the issue in November of 2017 after the large amount of #MeToo stories began breaking. Addressing supporters of the #MeToo movement at a march in Los Angeles, Senator Levya declared: “To all the [victims] here I want you to know the California legislature has your back . . . . The boys stick together. Now the women need to stick together.”[35] In response to the growing hunger for action in the #MeToo era, Senator Levya introduced S.B. 820, the Stand Together Against Non-Disclosures (STAND) Act.[36] The bill—which was ultimately signed into law by Governor Jerry Brown[37]—prohibits NDAs in employment contexts, namely where a supervisor or other co-worker forces an employee out of a company or industry.[38]

Other states have proposed a variety of bills that would outlaw non-disclosure agreements. In New Jersey, for example, State Senators Loretta Weinberg and Nia Gill introduced legislation amending the state’s Law Against Discrimination to prohibit non-disclosure agreements in settlements.[39] The proposed law went the extra step, though, to legislatively forbid waivers of potential claims of discrimination and retaliation under the Law Against Discrimination.[40] This legislative proscription is the first in the nation, and will likely do much to promote the judicial remedies of individuals who are discriminated against in the workplace while significantly stymieing efforts of administrators and managers to keep workplace discrimination under wraps.[41] Governor Phil Murphy signed the legislation on March 18, 2019.[42] However, proposed changes to the state’s Civil Service Commission Regulations regarding the internal investigation of sexual misconduct allegations seem to move the government in the opposite direction of private employers.[43] Senator Weinberg condemned this proposed rulemaking, claiming that “[t]his proposed change would in effect silence survivors who work for the State who report harassment or assault. It would prevent them from discussing their situation in or out of the office.”[44] As of this writing, the proposed rulemaking has not been adopted.

Members of the U.S. Congress introduced legislation in the 115th Congress that sought to counteract the contractual force of non-disclosure provisions. Led by Congresswoman Lois Frankel of Florida, a bipartisan group of legislators crafted the Ending the Monopoly of Power Over Workplace Harassment through Education and Reporting (EMPOWER) Act.[45] The bill, if enacted, would similarly prohibit employers from requiring employees to sign non-disclosure agreements as a condition of employment.[46] However, the bill contained a carve-out for non-disclosure agreements contained in settlement or separation agreements that are (1) executed after the accrual of a claim for sexual harassment and (2) “mutually agreed upon and mutually benefit both the employer and employee.”[47] This settlement exception might ultimately swallow the rule and negate the purpose of the law, as most settlements are likely to provide some sort of consideration to an employee victim of sexual harassment. However, the bill made clear that, notwithstanding the signing of such an agreement, “an employee or applicant retains any right that person would otherwise have had to report a concern about workplace harassment, including sexual harassment or another violation of the law to the [EEOC], another Federal agency . . . , a State or local fair employment practices agency or any State or local agency, or a law enforcement agency.”[48] To the extent that an employer can execute an enforceable non-disclosure agreement with an employee while remaining accountable to the EEOC or other investigatory bodies, the EMPOWER Act would seek to legislatively persuade employers to take initiative to countermand workplace harassment.[49]

The common law provides an additional avenue for invalidating non-disclosure agreements through the unconscionability doctrine.[50] When a contractual provision is oppressively applied to the party against whom enforcement is sought,[51] the courts generally have the ability to step in and void a contract where enforcement would be morally and equitably wrong.[52] Although it is easy to imagine scenarios where victims of sexual assault and harassment are compensated for their injuries in consideration for their silence,[53] courts should be wary of continuing to enforce non-discrimination agreements in the #MeToo era for concerns of both public policy and the ever-elusive capital-j Justice.

Conclusion

The legal landscape for women in the workplace has vastly improved in the decades since the passage of the Equal Pay Act of 1963[54] and the inundation of additional workplace protections achieved with the passage of the Civil Rights Act of 1964.[55] But the reality of the American labor economy in 2019 and the naissance of the #MeToo movement of 2017 has reminded America and American policymakers that the quest for gender parity is far from complete. Lawmakers in many states have already begun taking action to further attack the validity and impact of non-disclosure agreements that primarily benefit employers.[56] Even more state legislative bodies are continuing to contemplate legislative action.[57] The federal government has the ability to flex its muscles through amending existing labor laws to prohibit the use of non-disclosure clauses in settlement agreements.[58] As contract law is largely regulated by the states, it thus should fall to individual state legislatures to take action to counteract the plague of non-disclosure agreements that have the effect of silencing women and men who are victims of sexual assault and harassment. State legislative leaders who are serious about addressing this issue should consider following the example of New Jersey State Senators Loretta Weinberg and Nia Gill whose bill bans employers from including non-disclosure clauses in settlement agreements. But even their initiative is likely not the end-all bill that the issue warrants. All government officials who are attentive to the issues of sexual assault and harassment and gender equity in the workplace should continue to embark on new legislative proposals that respond to the new and old challenges that employees and other Americans face.

[*] J.D. Candidate, May 2019, Rutgers Law School, Camden, New Jersey. Many thanks to Zoey Salsbury, J.D. Candidate, May 2022, Seattle University School of Law, who has been very helpful in the research and editing of this Note after only a few months in law school.

[2] See, e.g., Ronan Farrow, Harvey Weinstein’s Secret Settlements, New Yorker (Nov. 21, 2017), https://www.newyorker.com/news/news-desk/harvey-weinsteins-secret-settlements (sparking the cascading fall of prominent and powerful predators through widely-reported allegations of victims and survivors of sexual assault and harassment).

[3] See Emily Shugerman, Me Too: Why Are Women Sharing Stories of Sexual Assault and How Did It Start?, Independent (Oct. 17, 2017), https://www.independent.co.uk/news/world/americas/me-too-facebook-hashtag-why-when-meaning-sexual-harassment-rape-stories-explained-a8005936.html.

[4] See Alyssa Milano (@Alyssa_Milano), Twitter (Oct. 15, 2017, 4:21 PM), https://twitter.com/Alyssa_Milano/status/919659438700670976 (“If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”). As of May 2019, Milano’s tweet has received over sixty-five thousand replies, twenty-four thousand retweets, and fifty-two thousand “likes.” See also Michael Rothman & Luchina Fisher, #MeToo Campaign Shines Light on Those Sexually Harassed or Assaulted, ABC News (Oct. 16, 2017), https://abcnews.go.com/Entertainment/metoo-campaign-shines-light-sexually-harassed-assaulted/story?id=50508897 (discussing many high-profile individuals who decided to come forward with their stories of sexual harassment and abuse including singer Lady Gaga, actress Debra Messing, and Senator Elizabeth Warren).

[5] E.g., Jake Nevins, Morgan Freeman Accused of Sexual Harassment by Eight Women, Guardian (May 24, 2018), https://www.theguardian.com/film/2018/may/24/morgan-freeman-sexual-harassment-accusations-claims-women; Anna North, The Aziz Ansari Story is Ordinary. That’s Why We Have to Talk About It, Vox (Jan. 16, 2018), https://www.vox.com/identities/2018/1/16/16894722/aziz-ansari-grace-babe-me-too; Madison Park, Kevin Spacey Apologizes for Alleged Sex Assault with a Minor, CNN (Oct. 31, 2017), https://www.cnn.com/2017/10/30/entertainment/kevin-spacey-allegations-anthony-rapp/index.html.

[6] E.g., Gwyneth Brinkley, 27 More Women Accuse Charlie Rose of Sexual Harassment, Advocate (May 5, 2018), https://www.advocate.com/media/2018/5/05/27-more-women-accuse-charlie-rose-sexual-harassment; Ellen Gabler, Jim Rutenberg, Michael M. Grynbaum & Rachel Abrams, NBC Fires Matt Lauer, the Face of ‘Today’, N.Y. Times (Nov. 29, 2017), https://www.nytimes.com/2017/11/29/business/media/nbc-matt-lauer.html.

[7] E.g., Ellen Cranley, Court Documents Show Disgraced Congressman Blake Farenthold Blaming ‘F-tards’ and the #MeToo Movement for His Downfall, Bus. Insider (Aug. 19, 2018), https://www.businessinsider.com/blake-farenthold-f-tards-sexual-harassment-scandal-2018-8; Sheryl Gay Stolberg, Yamiche Alcindor & Nicholas Fandos, Al Franken to Resign from Senate Amid Harassment Allegations, N.Y. Times (Dec. 7, 2017), https://www.nytimes.com/2017/12/07/us/politics/al-franken-senate-sexual-harassment.html; Karen Tumulty, With [Roy] Moore’s Defeat, #MeToo Movement Forces a Reckoning, Wash. Post (Dec. 13, 2017), https://www.washingtonpost.com/powerpost/with-moores-defeat-metoo-movement-forces-a-reckoning/2017/12/13/0ffa11fa-deb8-11e7-8679-a9728984779c_story.html?noredirect=on&utm_term=.82e7b2c3ab42.

[8] E.g., Christine Hauser, The Women Who Have Accused Brett Kavanaugh, N.Y. Times (Sept. 26, 2018), https://www.nytimes.com/2018/09/26/us/politics/brett-kavanaugh-accusers-women.html; Matt Zapotosky, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct, Wash. Post (Dec. 8, 2017), http://wapo.st/2nIfgXw?tid=ss_tw&utm_term=.d8e98ffb7bc7.

[9] Kim Severson, Asia Argento, a #MeToo Leader, Made a Deal with Her Own Accuser, N.Y. Times (Aug. 19, 2018), https://www.nytimes.com/2018/08/19/us/asia-argento-assault-jimmy-bennett.html.

[10] See, e.g., Gabler et al., supra note 5 (detailing veteran newsman Matt Lauer’s history of locking women in his NBC office via a button under his desk while he undressed and revealed himself to coworkers).

[11] E.g., Park, supra note 4 (discussing allegations of sexual assault against a minor by esteemed actor Kevin Spacey); Severson, supra note 8 (same by actress and former #MeToo leader Asia Argento).

[12] Nondisclosure Agreement, Black’s Law Dictionary (10th ed. 2014) (“A contract or contractual provision containing a person’s promise not to disclose any information shared by or discovered from a holder of confidential information . . . ”); see also Hiba Hafiz, How Legal Agreements Can Silence Victims of Workplace Sexual Assault, Atlantic (Oct. 18, 2017), https://www.theatlantic.com/business/archive/2017/10/legal-agreements-sexual-assault-ndas/543252/.

[13] For example, a business may wish to prevent an employee from disclosing any trade secrets learned while previously employed at the establishment. NDAs that center on actual trade secrets might be presumptively valid, and some states impose liability for misappropriation of trade secrets even absent an NDA to that effect. See, e.g., Ala. Code § 8-27-1 through 8-27-6 (imposing civil liability for those who misappropriate trade secrets without permission from former employer and criminal liability for those who remunerate or perpetrate such misappropriation themselves).

[14] See ACAS Acquisitions (Precitech), Inc. v. Hobert, 923 A.2d 1076, 1089–91 (N.H. 2007) (holding that an employer had a “legitimate interest in preventing its chief sales person from aiding in the marketing and sales of competitive products for a competitive business”); Uncle B’s Bakery v. O’Rourke, 920 F. Supp. 1405, 1429 (N.D. Iowa 1996) (discussing efforts to protect the “secrecy of [a bagel bakery’s] recipes, manufacturing, and packaging processes”).

[15] E.g., Jeff John Roberts, Why You Should Be Worried About Tech’s Love Affair with NDAs, Fortune (Apr. 29, 2019), http://fortune.com/2019/04/29/silicon-valley-nda/ (“Accept a [j]ob at any Silicon Valley company, and chances are someone will ask you to sign a nondisclosure agreement. These documents, dubbed ‘contracts of silence’ by academics, were once only required of senior managers, but today they are as common in the tech world as fleece vests.”).

[16] Non-Disclosure Agreement, Rocket Law., https://www.rocketlawyer.com/form/non-disclosure-agreement.rl#/ (last visited Aug. 27, 2018).

[17] Mutual Nondisclosure Agreement, LegalZoom, www.legalzoom.com/legalforms/form-fill?form=8365105e-c0a3-4ef3-baf2-919ab61f0bd5#/create-form-page-1 (last visited Aug. 27, 2018).

[18] Press Release, Am. Ass’n Univ. Professors, Purdue Global Nondisclosure Agreement Runs Roughshod Over Faculty Rights (Aug. 22, 2018), https://www.aaup.org/media-release/purdue-global-nondisclosure-agreement-runs-roughshod-over-faculty-rights#.XKKSx-tKjK0.

[19] Donald Trump (@realDonaldTrump), Twitter (Aug. 13, 2018 12:13 PM), https://twitter.com/realDonaldTrump/status/1029038164248338432; see also Bob Fredericks, Trump: Omarosa Owes Millions for Breaking Confidentiality Deal, N.Y. Post (Aug. 14, 2018), https://nypost.com/2018/08/14/trump-camp-files-arbitration-action-against-omarosa-for-breaking-secrecy-agreement/ (discussing President Trump’s efforts to prevent former White House staffer and Apprentice star Omarosa Manigault from discussing her time as a Trump aide); Victoria Guida, Conway: Trump White House Requires Nondisclosure Agreements, Politico (Aug. 12, 2018), https://www.politico.com/story/2018/08/12/conway-omarosa-non-disclosure-agreements-774148.

[20] Alison Frankel, Trump NDAs Can’t Silence Ex-White House Officials: Legal Experts, Reuters (Mar. 19, 2018), https://www.reuters.com/article/us-otc-nda/trump-ndas-cant-silence-ex-white-house-officials-legal-experts-idUSKBN1GV2UT.

[21] Severson, supra note 8.

[22] Id.

[23] Vicki Schultz, Reconceptualizing Sexual Harassment, Again, 128 Yale L.J.F. 22, 48 (2018).

[24] E.g., Jessica Levinson, Non-Disclosure Agreements Can Enable Abusers. Should We Get Rid of NDAs for Sexual Harassment?, NBC News (Jan. 24, 2018), https://www.nbcnews.com/think/opinion/non-disclosure-agreements-can-enable-abusers-should-we-get-rid-ncna840371.

[25] Ian Ayres, Targeting Repeat Offender NDAs, 71 Stan. L. Rev. Online 76, 78 (2018).

[26] Id. at 79.

[27] Id. at 85 (noting that the Department of Education could feasibly assume the role of the EEOC in the educational setting).

[28] Professor Ayres further acknowledges that his “reform proposals would do almost nothing to deter offenders from committing their first offense.” Id. at 78. This Note posits that Ayres’s reform package would do little because it is only actually aimed at repeat offenders in employment contexts, while still contemplating that an employer or supervisor could lawfully contract to a non-disclosure agreement with his or her victim.

[29] Eric Levenson, Larry Nassar Apologizes, Gets 40 to 125 Years for Decades of Sexual Abuse, CNN (Feb. 5, 2018), https://www.cnn.com/2018/02/05/us/larry-nassar-sentence-eaton/index.html; Press Release, Dep’t of Justice, Lawrence Nassar Sentenced To 60 Years in Federal Prison (Dec. 7, 2017).

[30] See, e.g., Ariz. Rev. Stat. Ann. § 12-720 (West 2018) (permitting signatories to speak about the subject matter of a non-disclosure agreement to prosecutors in criminal proceedings); Cal. Civ. Proc. Code § 1001 (West 2018) (prohibiting the use of non-disclosure agreements in cases of sexual assault, sexual harassment, and sex discrimination); Wash. Rev. Code Ann. § 49.44.210 (West 2018) (same, except carving out an exception for settlements between employer and employee that are not conditioned on an offer of employment).

[31] E.g., Legislative Counsel’s Digest to S.B. 820, 2018 Leg. (Cal. 2018).

[32] See Lochner v. New York, 198 U.S. 45, 53 (1905) (“The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.”), abrogated by W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

[33] E.g., Signapori v. Jagaria, 84 N.E.3d 369, 376 (Ill. Ct. App. 2017) (striking down a confidentiality provision in a financial fraud civil case where upholding the agreement would “assist the plaintiffs in concealing their fraudulent misrepresentations to the [defendants] in violation of state and federal law”); Marcinczyk v. Police Training Comm’n, 5 A.3d 785, 789–90 (N.J. 2010) (defining an agreement as contrary to public policy “if it is injurious to the interests of the public[,]. . . tends to interfere with the public welfare or safety, or . . . is at war with the interests of society and is in conflict with public morals”) (quoting Frank Briscoe Co. v. Travelers Indem. Co., 65 F. Supp. 2d 285, 312 (D.N.J. 1999)); Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 983 A.2d 604 (N.J. Super. Ct. App. Div. 2009) (voiding an attorney retainer agreement that would have required a former client to pay interest on late fee payments and also pay the firm’s attorneys’ fees if it filed a civil claim to recover them as both contrary to public policy and New Jersey’s ethical rules).

[34] E.g., Fla. Stat. Ann. § 771.06 (West 2018) (declaring all contracts related to the former common law tort of alienation of affections—an ancillary tort filed against a third party who was the proximate cause of the failure of a marriage—contrary to public policy and void as a matter of law); La. Stat. Ann. § 9:2717(A)(1) (West 2018) (voiding contracts between governmental units and entities that result from “fraud, bribery, corruption, or other criminal acts”); Miss. Code. Ann. § 75-81-117(1) (West 2018) (declaring all contracts that do not conform with the specific dictates of Mississippi’s law on dance studio lessons to be “void and unenforceable as contrary to public policy”); N.J. Stat. Ann. 34:11-56a3 (West 2018) (declaring that contracts for employment that offer below-minimum-wage are voided for public policy purposes); N.Y. Gen. Bus. Law § 659 (McKinney 2018) (same, for membership camping contracts); Star Direct, Inc. v. Dal Pra, 767 N.W.2d 898, 905 (Wis. 2009) (citing Wis. Stat. Ann. § 103.465 (West 2016)) (requiring that non-competition agreements between employers and employees not run counter to public policy).

[35] Steven Zeitchik, After Weinstein, Hollywood Launches Anti-Sexual-Harassment Hotline, Wash. Post (Nov. 13, 2017), https://www.washingtonpost.com/business/economy/after-weinstein-hollywood-launches-anti-sexual-harassment-hotline/2017/11/13/20444df4-c857-11e7-b244-2d22ac912500_story.html?utm_term=.38603af1cdc1.

[36] Press Release, Office of Sen. Connie M. Levya, Legislature Approves Leyva Bill Banning Secret Settlements in Sexual Assault and Harassment Cases (Aug. 24, 2018), https://sd20.senate.ca.gov/news/2018-08-24-legislature-approves-leyva-bill-banning-secret-settlements-sexual-assault-and.

[37] Id.

[38] Cal. Civ. Proc. Code § 1001 (Deering 2018).

[39] S. 121, 218th Leg., 2018 Sess. (N.J. 2018) § 2 (“A provision in any employment contract or agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment shall be deemed against public policy and unenforceable.”).

[40] Id. at § 1.

[41] Lynne Anne Anderson & Brooke Razor, Legislative Alert: New Jersey on a Fast Track to Ban Waivers of, and NDAs Relating to, Employment Discrimination, Harassment and Retaliation Claims, Nat’l L. Rev. (June 12, 2018), https://www.natlawreview.com/article/legislative-alert-new-jersey-fast-track-to-ban-waivers-and-ndas-relating-to

[42] Susan K. Livio, N.J. Outlaws Gag Orders that Muzzle Victims of Sexual Harassment and Assault, NJ Advance Media (Mar. 18, 2019), https://www.nj.com/business/2019/03/nj-outlaws-gag-orders-that-muzzle-victims-of-sexual-harassment-assault.html. Republican leader in the General Assembly noted, “Women often do not report such heinous behavior because they are afraid of retribution. Some are also worried that if they talk they will face legal action.” Id.

[43] 51 N.J.R. 191(b) (proposing a change to N.J.A.C. 4A:7-3.1(j) that would mandate “administrative and/or disciplinary action, up to and including termination of employment” for violating a confidentiality directive for those involved in a sexual misconduct investigation, including witnesses).

[44] Letter from Sen. Loretta Weinberg to Christopher Myers, Director, Division of Appeals and Regulatory Affairs of the Civil Service Commission (Apr. 16, 2019), https://www.insidernj.com/press-release/weinberg-challenges-civil-service-commission-proposed-rule-changes-workplace-discrimination-harassment/.

[45] EMPOWER Act, H.R. 6406, 115th Cong. (2018). Rep. Frankel reintroduced the EMPOWER Act in the 116th Congress on March 5th, 2019 alongside fifty-eight Democratic and four Republican co-sponsors. EMPOWER Act, H.R. 1521, 116th Cong. (2019). Senator Kamala Harris introduced the Senate companion bills as S. 575 and S. 574 alongside Senator Lisa Murkowski. EMPOWER Act Part 1, 116th Cong. (2019); EMPOWER Act Part 2, 116th Cong. (2019).

[46] Id. § 103(a).

[47] Id. § 103(b)(1)

[48] Id. § 103(c).

[49] Legislators have previously taken at least one small step in federal legislation to decrease the attractiveness of settlements related to sexual harassment through the 2017 total renovation of the Tax Code. See 26 U.S.C. § 162(q)(1) (2018) (prohibiting businesses from claiming such settlements regarding “sexual harassment and abuse” as business expenses or taxable deductions).

[50] Restatement (Second) of Contracts § 208 (Am. Law Inst. 1977); U.C.C. § 2-302 (Am. Law Inst. & Unif. Law Comm’n 1977).

[51] See, e.g., Emma J. Roth, Is a Nondisclosure Agreement Silencing You from Sharing Your ‘Me Too’ Story? 4 Reasons It Might Be Illegal, ACLU (Jan. 24, 2018), https://www.aclu.org/blog/womens-rights/womens-rights-workplace/nondisclosure-agreement-silencing-you-sharing-your-me-too.

[52] E.g., Little v. Auto Stiegler, Inc., 63 P.3d 979, 985 (Cal. 2003) (holding an arbitral appeal provision in an agreement “unconscionably one-sided” because the individual appellate provisions contained within the underlying contracts unfairly afforded the defendant a “substantial opportunity to overturn a sizeable arbitration award”); D’Agostino v. Maldonado, 78 A.3d 527, 532, 540 (N.J. 2013) (holding that a defendant who had swindled plaintiffs out of their homeownership through a complex mortgaging and deeding process and had surreptitiously acquired clean title from the plaintiffs for a sum of ten dollars had committed “unconscionable commercial practice[s]” violative of New Jersey’s statute codifying unconscionability doctrine) (citing N.J. Stat. Ann. 56:8-2 (West 2018)).

[53] See supra text accompanying notes 45–46.

[54] Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56 (codified as amended at 29 U.S.C. § 206(d)).

[55] Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified, among other places, as amended at 42 U.S.C. § 2000e).

[56] See supra text accompanying notes 33–40.

[57] E.g., H.B. 1259, 2018 Leg., 120th Reg. Sess. (Fla. 2018) (“A settlement agreement involving a claim for sexual harassment or sexual activity occurring in the workplace between employees, between an employer and an employee, or between an employer or employee and a third party may not prohibit the employee from disclosing or discussing the events giving rise to the claim.”); H.B. 2695, 87th Leg., 2018 Reg. Sess. (Kan. 2018) (prohibiting state officials from requesting a non-disclosure agreement when settling with another person, but allowing the offended party to request such an agreement); S. 2687, 2018 Leg., Jan. Sess. (R.I. 2018) (voiding nondisclosure provisions within a settlement agreement that prevent the disclosure of factual information related to workplace complaints).

[58] Given the ever-increasing political polarization taking place in Washington, D.C., it is further unlikely that the most-unproductive Congress would unite to pass legislation to this effect in any order. Since the Democrats wrestled control of the House of Representatives from the Republicans in the 2018 midterm elections, the 116^th Congress is likely to be as gridlocked as ever. See Drew Desilver, A Productivity Scorecard for the 115th Congress: More Laws Than Before, But Not More Substance, Pew Res. Ctr. (Jan. 25, 2019), www.pewresearch.org/fact-tank/2018/01/11/despite-gop-control-of-congress-and-white-house-lawmaking-lagged-in-2017/.