Selling Silence: The Morality of Sexual Harassment NDAs

Abstract

This article argues against enforcing sexual harassment nondisclosure agreements (NDAs). Although NDAs guard privacy, facilitate settlement, and compensate victims, they also help repeat perpetrators avoid detection and punishment, endangering future victims and undermining efforts to combat sexual harassment. Advocates argue that victims have no duty to prevent these harms, given the risks and trauma of reporting. I offer three responses. First, although most victims have no duty to speak, some victims might come to have such a duty. The state should not help them commit to violating a future duty. Second, some initially reticent victims may later want to disclose. The state should not enforce promises not to do supererogatory acts. Third, NDAs make victims complicit with the perpetrator's future harassment and wrongful efforts to avoid social punishment. If perpetrators refuse to compensate victims adequately without NDAs, we should increase victim compensation rather than enforce NDAs. Accused harassers might claim they need NDAs to guard against wrongful or excessive social punishment. For guilty perpetrators, NDAs resemble felony expungement statutes. However, arguments for expungement do not apply to NDAs. Although falsely accused people have legitimate privacy interests, NDAs are an excessively broad way to protect this interest.