Hollywood’s Darkest Secret: How Hollywood Employs Non-Disclosure Agreements and Confidentiality Clauses to Silence Sexual Assault Victims

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By Alex Palumbo

Few disagree that 2017 became a defining “watershed” moment in the national conversation and spurred awareness of the stories and experiences of sexual assault victims. Few industries were left unaffected by this conversation by the year’s end, including the realms of politics, arts, cable news, morning news, and corporate America. Victims came forward in numbers neither seen nor heard before. As with any situation where previously hidden stories come to light, questions arise. How have we never heard these stories before? How long have the victims lived in silence? How were the perpetrators able to keep living their lives and abusing more victims? This article examines that final question specifically. How did these perpetrators continue their patterns of abuse—silencing their victims while continuing to live freely?

When The New York Times and The Washington Post first unveiled the pattern of abuse perpetrated by Harvey Weinstein, it shocked our collective societal conscious. However, within Hollywood—as more and more actresses and actors came forward—the narrative became clearer. A web of systematic support for Weinstein had allowed him to carry on these heinous acts for decades in Hollywood. But Weinstein’s calculated efforts of cover-up included provisions outside a pervasive and protective group of insiders. The legal system may have also aided Weinstein, as  non-disclosure agreements contained in employment contracts have precluded many victims from sharing their stories.

Federal labor law (National Labor Relations Act, Title VII of the Civil Rights Act) prohibits employers from disciplining workers who talk about sexual harassment, and invalidates settlement agreements which prohibit settling employees from filing charges with the Equal Employment Opportunity Commission. However, this area of labor law remains under-enforced (especially in light of victim silencing)—and an information asymmetry exists often with young actors and actresses (as in Weinstein’s case) who may not be fully aware of their right to raise claims against harassers and employers. Sexual assault is often about asserting authority over powerless victims, and repeated examples from the stories of Weinstein’s abuse in Hollywood expound this trend. Further, a distinguishing principle arises when a consistent pattern of sexual harassment may leave victims confused and without direction as to whether their voice will be heard if they report their claims internally to (often complicit) HR departments, but do not press criminal sexual assault charges.

Non-disclosure agreements exist at one side of the spectrum, where as part of an employment contract, an employee accedes to not disclose certain types of information as a condition of their employment. Confidentiality agreements also occur as a condition of settlement, outside of the courtroom and outside many of those federal labor law protections. Though victims who receive settlements arising from sexual assault claims may achieve financial vindication, they are then silenced from speaking about their experiences or face extreme “liquidated damage” provisions forcing them to pay back inordinate sums of money if any facts surrounding the dispute leak.

Hollywood is a unique industry where artists, actors, actresses—come from across the country and world to achieve their dreams in their corresponding field. Although there is no industry where it is easy for a sexual assault victim to simply relocate or change jobs/careers, Hollywood in particular breeds a “silencing culture.” Weinstein offers just one example of the notoriety surrounding Hollywood’s power-players, and that “sit down, shut up, then move along” deal-with-the-devil culture. Few, if any, professions are as public and outwardly facing as a career in Hollywood. When you are not making movies or landing roles—your absence is abundantly clear. This vulnerability is exactly what is preyed upon by Weinstein and other perpetrators like him.

In an industry of the arts like Hollywood, the reality persists that women are consistently and systematically treated unfairly and worse, inappropriately. The effort to silence women making sexual assault claims is just one of many sordid deeds in this industry—women are paid less and consistently face disparities, with those disparities widening amongst women of color. The reality stands that Hollywood, as an immediately recognizable force that informs our society and culture, now possesses an immediate responsibility to look inward and move forward to dismantle practices that have been in play for generations.

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