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States are trying to make it harder for men like Trump and Weinstein to silence women

Legislators from at least 12 states introduced bills this year to curb the use of nondisclosure agreements in cases of workplace sexual misconduct or discrimination.

by Carter Sherman
Mar 20 2019, 5:41pm

It was August 2016, and Alva Johnson wanted her boss, Donald Trump, to “kick ass.”

The two were at a rally in Florida, which Johnson helped organize as part of her work for Trump’s presidential campaign, according to court documents. Trump was greeting supporters and signing autographs inside a trailer, while Johnson watched nearby. As Trump walked out of the trailer, Johnson said she told him to “kick ass.” Then, he allegedly grabbed her hand and did not let go.

That’s when, Johnson said, the future president kissed her without her consent.

Johnson left the campaign a few months later, after she heard Trump crow about how he’d “just kiss” beautiful women without their consent on the “Access Hollywood” tape. But for more than two years, Johnson told only a few people about the alleged assault.

Then, late last month, Johnson sued Trump and his campaign for the alleged unwanted kiss and for underpaying her due to race and gender discrimination.

In coming forward, she’s not only launching a legal war against the president of the United States for sexual assault. Johnson’s also breaking a nondisclosure agreement she signed when she joined the Trump campaign — the exact kind of contract that legislators across the country are trying to eradicate in the wake of the #MeToo movement.

Johnson filed her lawsuit in federal court in Florida, one of at least 12 states where legislators introduced bills this year to curb the use of nondisclosure agreements in cases of workplace sexual misconduct or discrimination, according to a tally by the National Women’s Law Center and a VICE News review of bills introduced before early March 2019. Lawmakers in Washington, D.C., have also filed a similar bill.

During the same period last year, 10 states did the same, VICE News found.

Nondisclosure agreements have haunted the #MeToo movement since before it even had a name. Harvey Weinstein included nondisclosure provisions in settlements with multiple women, according to the New York Times story that first named Weinstein as a rampant sexual harasser and energized the #MeToo movement. The employment contracts for Weinstein Company workers also included broad NDAs that kept them from talking to law enforcement, an investigation by the New York attorney general’s office later found.

Both types of nondisclosure agreements are common in settlements and workplaces and can help breed a culture of silence around sexual misconduct, advocates said.

“In general, NDAs and companies that keep things secret like race discrimination and sex discrimination are really problematic,” said Jennifer Bennett, who’s helping represent Johnson as a staff attorney at the public interest law firm Public Justice. “And in general, those things should not be able to be kept secret. It’s even more important when the employer is the president of the United States.”

While Weinstein (and many others accused of sexual misconduct) quickly lost his job and watched his influence crater, translating the cultural impact of #MeToo into tangible, legal action has remained a much slower process. But it's now slowly speeding up.

“All of us who advocate for stronger laws were very excited to see all the energy among legislators — state-level legislators and federal — to try to enact new laws to strengthen our sexual harassment protections,” said Jessica Stender, senior counsel for workplace justice and public policy for the women’s rights group Equal Rights Advocates. “But we were all hoping that it wouldn’t just be a kind of burst of energy and then, you know, they would move along thinking that the problem had been solved.”

No one wants to outlaw NDAs entirely, since corporations can fairly use them to protect trade secrets. Instead, legislators want to limit their ability to muzzle victims. Of the 13 states and localities pushing for reform this year, eight want to either ban NDA’s use in sexual misconduct settlements, or at least stop employers from making new hires sign broad agreements that make people feel trapped and unable to reveal harassment.

Three states are seeking to expand people’s ability to report sexual misconduct to law enforcement or government agencies, even if they’ve signed an NDA. And legislators in one state, New Hampshire, want to completely forbid public figures from forging confidential settlements over sexual misconduct allegations.

So far in 2019, only Virginia and New Jersey have managed to turn their NDA legislation into law. Employers in Virginia can no longer ask prospective workers to sign agreements that could conceal details of sexual assault. And New Jersey will now let workers who’ve settled discrimination, retaliation, or harassment claims publicly identify their employer — even if that settlement contained a nondisclosure clause.

At the federal level, lawmakers are inching toward reform. In early March, a bipartisan group of lawmakers in the U.S. House introduced a bill that would ban employers from making prospective workers sign NDAs that cover workplace harassment, force companies to reveal information about any harassment settlements, and forbid them from taking tax deductions on any litigation over workplace harassment claims. A similar bill is expected to be introduced in the Senate.

No one-size-fits-all reform

When Johnson joined the Trump campaign and signed an NDA, she wasn’t allowed to share confidential information that could be detrimental to Trump, any Trump company, any member of the Trump family, or any company owned by any member of the Trump family. While those terms are unusually sweeping, according to Bennett, increasingly expansive NDAs bind more and more of the American workforce.

“The #MeToo movement has had a tremendous impact on the interest in reforming NDAs in particular and other types of reform with respect to workplace harassment as well,” said Ramya Sekaran, who works on workplace justice and education issues at the National Women’s Law Center. “The Harvey Weinstein [case], obviously, was a case that really highlighted the really pernicious use of NDAs to silence victims and allow a serial harasser to operate with impunity,” she said.

Ultimately, 14 states introduced legislation last year to curtail nondisclosure agreements’ use in sexual misconduct cases. Seven ended up successfully passing laws, the National Women’s Law Center found.

But there’s no one-size-fits-all reform for nondisclosure agreements.

In an Aug. 24, 2016 photo, Republican presidential nominee Donald Trump meets supporters organizing voter registration and support for his campaign just before a rally at the Florida State Fairgrounds in Tampa, Fla. A woman is alleging in a new lawsuit filed Monday, Feb. 25, 2019, that Inside the RV seen here, Trump kissed a member of his campaign staff without consent. The woman, Alva Johnson, can be seen in the background of this photo wearing a Trump shirt and a hat on the left side of the frame.(Loren Elliott/Tampa Bay Times via AP)
A woman is alleging in a new lawsuit filed Monday, Feb. 25, 2019, that Inside the RV seen here, Trump kissed a member of his campaign staff without consent. The woman, Alva Johnson, can be seen in the background of this photo wearing a Trump shirt and a hat on the left side of the frame.(Loren Elliott/Tampa Bay Times via AP)

In 2018, Arizona passed a law banning its public officials from using taxpayer money to pay for sexual misconduct settlements that include nondisclosure provisions. Employers in California, Maryland, Tennessee, Vermont, and Washington can no longer ask workers sign NDAs that keep them from talking about sexual harassment. In California and New York, legislators outlawed NDAs that prohibit people from discussing the facts behind a sexual harassment settlement, unless the survivor wants to keep details secret.

“Plaintiffs do sometimes want such confidentiality,” said Stender, senior counsel at the Equal Rights Advocates. “They don’t want their friends or neighbors to know what happened to them.”

When settling sexual misconduct claims, companies may also be more willing to pay more to keep a survivor from going public, according to Stender. For a low-income worker, that money may be more valuable than their ability to speak out; women, who make up the majority of survivors of sexual violence, are more likely to live in poverty.

“That’s why there have been some responses, on the plaintiff’s side [and] workers’ rights community, where lawyers have actually been against these types of laws prohibiting or limiting confidentiality agreements,” Stender explained. “Because they see it as, it will prohibit them or inhibit them and their ability to get the best settlement possible for their clients.”

When asked about those concerns, Melinda Bush, a Democratic Illinois state senator who introduced a bill this year to ban NDAs from being used in any and all cases of workplace sexual misconduct, kept her answer short.

“I’d say that these things don’t belong in nondisclosure agreements,” Bush said of sexual misconduct. “It’s that simple to me.”

“Because harassment covers a very broad spectrum of behavior, we’ve ignored the fact that some of the behavior — and not infrequently — is in fact a criminal act,” added Leslie Levy, a California lawyer who’s spent more than three decades representing victims of employment discrimination and sexual harassment. “As a matter of public policy, you shouldn’t be able to shut people up about being victims of crimes.”

Levy doesn’t want to give companies any way to keep sexual harassment or assault quiet, and she said only a handful of her clients have ever signed nondisclosure agreements. But even without a confidentiality agreement, the abuser rarely acknowledges what happened publicly, for obvious reasons. At least 87 women have accused Weinstein of raping, assaulting, groping, or harassing them, but Weinstein has denied all allegations.

As for Trump, it’s impossible to know how many people are barred from speaking out against him or a member of his inner circle by NDAs, particularly because the Trump administration is still reportedly having White House employees sign them. The Trump campaign also has yet to file a court response to Johnson’s complaint.

White House Press Secretary Sarah Huckabee Sanders, however, called Johnson’s allegations “absurd.” “This never happened and is directly contradicted by multiple highly credible eye witness accounts,” she told the Washington Post in a statement.

The campaign’s national press secretary Kayleigh McEnany added in a statement to VICE News: “The Trump campaign has never discriminated based on race, ethnicity, gender, or any other basis. Any allegation suggesting otherwise is off base and unfounded.”

Cover image: President Donald Trump speaks to reporters before departing the White House, Wednesday, March 20, 2019, in Washington, for a trip to visit an Army tank plant in Lima, Ohio, and a fundraising event in Canton, Ohio. (AP Photo/Manuel Balce Ceneta)