RETHINKING NONDISCLOSURE AGREEMENTS IN SEXUAL MISCONDUCT CASES.

Author:Duchicela, Taishi
 
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TABLE OF CONTENTS INTRODUCTION I. The Significance of the Public Firing or Resignation of Powerful Men A. How the President Sets the Tone for the Cultural Climate on Abuses against Women B. The Harvey Weinstein Effect II. The Silencing Effect of Nondisclosure Agreements and Their Potential Illegality A. What is the Purpose of Nondisclosure Agreements? B. The Case For and Against Nondisclosure Agreements in Sexual Misconduct Claims: From the Victim's Perspective C. The Impact of Nondisclosure Agreements on Public Health and Safety D. Identifying the Arguably Illegal Uses of Nondisclosure Agreements in Sexual Misconduct Claims 1. Nondisclosure Agreements That May Be "Contrary to Public Policy" 2. Nondisclosure Agreements as "Unconscionable" Contracts 3. State Laws Prohibiting Nondisclosure Agreements in Sexual Misconduct Cases III. A Holistic Approach: Courts, Legislation, and Industries A. Courts 1. The Judiciary and Sexual Misconduct 2. Judicial Solutions B. Current Trends in Congressional Legislation C. Industry-Led Initiatives D. A Holistic Approach to Resolving the Use of Nondisclosure Agreements in Sexual Misconduct Cases CONCLUSION INTRODUCTION

"I better use some Tic Tacs just in case I start kissing her. You know I'm automatically attracted to beautiful. I just start kissing them. It's like a magnet. I just kiss. I don't even wait. And when you're a star they let you do it. You can do anything. Grab them by the p***y. You can do any thing...Oh, nice legs, huh?" (1)

The above is an excerpt from the now infamous 2005 conversation between Donald Trump and Billy Bush arriving to an Access Hollywood appointment with actress Arianne Zucker. The video was revealed during Mr. Trump's presidential campaign in 2016. When questioned about his position on his remarks, he reduced the lewd and braggadocious comments as 'locker room talk." (2) He is now the forty-fifth president of the United States of America, a notable position of leadership.

Biology Professor, Rama Shankar Singh, (3) claims that sexual violence is "part and parcel of masculinity" that is not encoded in DNA, but rather is taught within a patriarchal society that thrives on establishing socialized gender roles. (4) Singh further elaborates that patriarchy cannot be undone without altering the rules of gender relationships between men and women. (5) Amanda Taub, a journalist with the New York Times, remarks that not only is this type of mentality and behavior offensive, but it imposes real costs on women. (6) She argues that "the burden of avoiding and enduring sexual harassment and assault results, over time, in lost opportunities and less favorable outcomes for girls and women. It is effectively a sort of gender-specific tax that many women have no choice but to pay." (7) Nancy Leong, a law professor at the University of Denver who researches civil rights and identity issues, concurs, remarking, "I really do think of it as a tax on opportunity." (8) Professor Leong names this phenomenal societal issue as "identity work" and that for women, there is a cost/benefit analysis where women consciously or subconsciously balance the risks of participating in public life against professional opportunities, social connections, or plain old fun. (9) This is the gender-specific tax on opportunity that women pay for being an outsider in a male dominated world. She further elaborates that "for women, this identity work often requires navigating the minefields of sexual objectification, harassment and danger." (10) Where women must conduct a balancing test for almost everything she considers doing daily; men, on the other hand, may just seize the opportunity. (11)

This comment will focus on the opportunity costs assessed by the use of nondisclosure agreements (12)--legal tools that have been extensively used to silence women. (13) I contend that President Trump's 2005 comments ignited a larger national conversation (14) during his 2016 presidential campaign, encompassing the broader and taboo subject of violence against women. (15) On the one hand, the public commentary following the leaked video passed then-candidate Trump's statements through the filter of the old adage "boys will be boys," (16) and shoulder shrug, "that's how real men speak." (17) Alternatively, and more recently, a sector of society, primarily women and male allies, (18) have been framing this type of behavior differently: "[f]ar too many men treat women's bodies as if they are fair game for anyone who happens to encounter them." (19) More specifically when this is played out in the workplace, Nancy E. Smith, a partner with the Smith Mullin law firm claims precisely what lawyers in the employment sector have been verbalizing--essentially that when employees sign nondisclosure agreements as part of their employment contracts they "have to give up their constitutional right to speak freely about their experiences if they want to be part of the work force...[t]he silence sends a message: Men's jobs are more important than women's lives." (20)

As a result, this comment will argue that a nondisclosure agreement is a contract that enables sexual misconduct in the workplace and consequently should be prohibited in sexual misconduct cases, unless both parties mutually consent. (21) Part I will consider, despite the chronic use of nondisclosure agreements, how exposure of men in powerful positions has continued the debate on sexual misconduct in various industries, making the issue a front runner in the national debate for public policy changes around abuses against women. Part II examines the purpose and use of nondisclosure agreements and the impacts that nondisclosure agreements have on public health and safety and why in some circumstances nondisclosure agreements may be illegal. Finally, Part III posits a possible holistic approach that addresses the functionality of nondisclosure agreements and how they are construed by the courts, facilitated through legislation, and utilized in various industries.

  1. THE SIGNIFICANCE OF THE PUBLIC FIRING OR RESIGNATION OF POWERFUL MEN

    1. How the President Sets the Tone for the Cultural Climate on Abuses against Women

      This comment further suggests that sexual misconduct has been enabled and accepted as a cultural norm by a patriarchal society(22) and has manifested, particularly in the workplace, into a public health and safety issue, which has put into place legal safeguards, whereby men are most notably protected by nondisclosure agreements ("NDA" or "NDAs"). However, it is important to begin with generally understanding the national context by which patriarchy leads to sexual misconduct.

      Presidents have influential power over the national agenda. (23) In this case, it begins with the general notion that violence against women is culturally accepted and repercussions to such behavior are minimal; seemingly, that notion is now trending differently. For instance, Rob Porter(24) resigned as a top aide to President Trump (25) following allegations of abuse by two ex-wives. (26) This is just the most recent story of a powerful man spotlighted for abuse against women and either resigning or being fired for his transgressions. (27) However, the most troubling national repercussion from this story has been President Trump's response to these evidence-based allegations, which was to praise the work that Mr. Porter had contributed to the Trump Administration and wish him well in his future career endeavors. (28) What one did not hear was President Trump take the moment as an opportunity to take a stance against abuse and violence against women that can eventually lead to workplace sexual misconduct. (29) He made no mention of sympathy for the ex-wives or offer any empathy, indeed he never mentioned them at all, rather he made sure to note that Mr. Porter must be going through a tough time and that he had "said very strongly that he's innocent" and prodded us to remember that. (30) The very next day President Trump reinforced his sentiment with a tweet, again backing his support for Mr. Porter and other men who have recently been accused of violence against women, (31) including sexual misconduct and harassment in the workplace. (32) Once again, since President Trump's presidential campaign, his comments were at the center of the 'violence against women' debate and he seemed to further thrust the debate forward by siding with the accused, (33) in the process, undermining the women's allegations by giving weight and credence to the accused despite comparable evidence to the contrary. (34) Accordingly, President Trump has a history of defending men accused of sexual misconduct, while consistently labeling women bringing forward allegations as liars. (35)

      The President is not alone in this type of rhetoric;(36) however, coming from the leader of the country it perpetuates misogyny and cements an ongoing and harmful attack on women, generally; but more specifically for women in the workplace. As the debate ensues NDAs are at the forefront of discussion. (37) People inside and outside of legal arenas are discussing whether NDAs should be allowed in circumstances that involve sexual misconduct. (38) However, when the President publicly sides with accusers of sexual misconduct, he is in essence condoning the socially accepted behavior by men and not supporting a legitimate national platform for women to speak and call out their harassers or abusers in the workplace. Despite the President's conduct, legislators throughout the country are responding by introducing bills that would combat this type of behavior and hold predators accountable to society. This will be discussed in Part II and III of this comment. Thus, the reality is that the President had and still has an opportunity in this moment of a cultural re-awakening and the #metoo(39) movement to use his platform to push forward a positive agenda and support legislation in finding long lasting, solutions to...

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