But while the NOAs remain enforceable by the courts, Mullin has also made it clear that with every tool in his arsenal, he will fight against what he sees as a good struggle – including what some see as a turning point, confidentiality and rules of non-disappearance in the settlements he negotiated. In early December, he and Smith filed a complaint on behalf of Rachel Witlieb Bernstein, one of the women who filed a sexual harassment complaint against former Fox News anchor Bill O`Reilly in 2002. The comparison included non-disappearance and confidentiality clauses. The scrupulous nature of the content focuses on the terms of the agreement itself, i.e. whether the agreement is unreasonably favourable to the most powerful party. For example, a court may consider that a unilateral provision of secrecy is unacceptable on its merits if it silences the survivor, but leaves the employer free to tell the press. A court may also consider an NOA to be unacceptable if it is unreasonable and prevents survivors from discussing their experience with their employer in relation to a NOA limited to the amount of the bill or the conditions. Confidentiality agreements (NOAs) should not be used to prevent anyone from reporting sexual harassment in the workplace, as the new guidelines raise. Some companies are also concerned that the agreements prevent managers from communicating with their employees about actions taken as a result of a complaint or from discussing systemic issues that could be addressed in the workplace. According to a new report that calls on Australian companies to rethink their approach, management and boards of publicly traded companies dealing with sexual harassment complaints need to talk in advance about what the culprits have done instead of hiding them and silencing victims.
It was not until the 1980s that the notion of secrecy began to creep into all kinds of treaties. It has become a strict provision in employment contracts for a certain type of salaried employment. And perhaps most importantly, it has become a regular feature of legal settlement agreements. It was then that these “contracts of silence,” as an article of the law revision called the entire spectrum of the NDA/non-disappearance/confidentiality clauses, really began to pose a problem for journalists. They have become an obstacle to some of the biggest corporate misbehaviour stories out there. The best known is that an NDA intervened when Jeffrey Wigand, the tobacco industry whistleblower, whose revelations about health risks consumed the news for weeks in the 1990s (and later became the basis of Michael Mann`s film The Insider), spoke to 60 Minutes in the fall of 1995. In the #MeToo movement, the women contacted him and asked to be released from the agreements. As a result of this relatively strange discourse, some 20 states have adopted “sun-in-trial” statutes that discourage the courts from imposing AND in cases where there is some public danger. Other states have introduced rule changes with the same effect, prohibiting the Tribunal from authorizing and sealing confidential transactions. Other courts have local rules that, in certain circumstances, are not applicable.