//  3/26/18  //  Commentary

#MeToo Series: This post is the first in a series on #MeToo, sex discrimination, and possible solutions that amount to more than quick fixes. You can read related posts here and here.

Throughout #MeToo, we’ve repeatedly heard calls for systemic solutions, but have yet to see many of them implemented. There are several reasons for that—the mechanics of systemic solutions are harder to understand and more difficult to quantify than short-term fixes like removing someone from a job. It’s easy for people to grasp how removing a serial harasser from a position of authority would reduce harassment, but harder to see why systematically including women would; removing someone from a job is also more attention-grabbing than reforming reporting processes, for example.

Recent stories, however, have underscored why systemic solutions are desperately needed, and why they have to be part of the conversations surrounding #MeToo. Some of the mechanisms that have enabled harassment and limited our ability to fix it are dry, technocratic legal rules. Solutions to #MeToo, therefore, must address those legalisms, particularly the availability of legal remedies and legal protections for accusers. I wanted to flag three stories that, in my view, underscore this point. This post will address one of them—the Stormy Daniels story, nondisclosure agreements, & private arbitration (which I briefly discussed in my post yesterday on Munger Tolles's now-former confidential arbitration agreement with its summer associates).

By now, everyone is familiar with the nondisclosure agreement between “Peggy Peterson” (aka Stormy Daniels/Stephanie Clifford) and “David Dennison” (aka, allegedly, Donald Trump). The nondisclosure agreement requires Daniels not to mention Trump publicly, and to refrain from discussing any relationship with him. The agreement also provides for, among other things, liquidated damages of $1 million for each breach of the agreement (including any violation of the confidentiality obligations), and arbitration of any disagreements concerning the agreement.

It’s fairly clear how NDAs and private arbitrations of this nature threaten our ability to address harassment. As Catharine Mackinnon has painfully detailed, sexual harassment allegations often aren’t taken seriously unless multiple women make them against the same man. Some women may also elect not to report harassment if they will be the only one to do so, but they would choose to report harassment if other women made allegations as well. NDAs eliminate a mechanism of potential corroboration for harassment allegations, and, in the process, may deter other women from reporting harassment.  NDAs also impede our collective understanding about the extent of sexual violence and sexual harassment, since some number of women aren't able to speak out in light of NDAs. Private arbitration can do the same, in addition to making it impossible for some individual victims of sex discrimination to press their claims

But it doesn't follow that NDAs should be invalidated across the board in cases of harassment or sex discrimination. Another painful reality of #MeToo has been a reminder of how much women who report harassment risk—isolation, exclusion, career damage, various forms of retaliation, losing their jobs, and so on. And that’s on top of the harassment itself. NDAs offer a way to make the harassment and the consequences of reporting harassment stop, because the only thing a victim may have to bargain with is the promise never to report her harasser.

Robbie Kaplan, of Kaplan & Company, told me that NDAs also can “probably get women higher monetary settlements” than public disclosure agreements. She also suggested that one possible solution would be a hybrid option that would settle cases through NDAs, but only make the amount of the payment confidential.  That would still allow the signatory to corroborate other accusations and tell her story if she later chose to. 

Another option is to target particularly problematic NDAs, including those that are signed at the *beginning* of a relationship before any misconduct might have occurred, but are worded in such a way as to prevent a signatory from discussing misconduct that occurred after signing the agreement. There's already some research along these lines. Orly Lobel has Harvard Business Review article that surveys different kinds of NDAs, and discusses which ones might be particularly problematic. Take Care contributor Daniel Hemel has also identified particular varieties of NDAs that are, or should be prohibited, including those that prohibit any discussion of wrongdoing in the workplace. For a more extended conversation about the harm of NDAs, check out this conversation between The Purple Campaign's cofounder Jessica Patterson and Airbnb's General Counsel Rob Chesnut.

While a lot of talk about NDA reform has (rightfully) focused on state contract law (particularly the "void against public policy" doctrine), federal law can also change some of the incentives surrounding NDAs. Section 13307 of the recently enacted Tax Cuts and Jobs Act, for example, prohibits tax deductions for settlements related to sexual harassment if the settlement is subject to a nondisclosure agreement. (You can read more about that provision here.) Although Congress limited the incentives for private companies to enter into confidential settlements in sexual harassment cases, it is not currently poised to address its own flawed process of using taxpayer money to confidentially settle sexual harassment claims against congresspersons.  And, of course, there hasn't been much movement on the Federal Arbitration Act, which is the federal law that makes it difficult (or the Supreme Court has interpreted to make it difficult) to challenge requirements to arbitrate (I will have more on this in a later post).

But back to the Stormy Daniels story. In addition to the relevance of NDAs and private arbitration, the Stormy Daniels story also highlights other challenges that victims will face in trying to hold their harassers accountable. Because of Trump’s notoriety, Daniels has several advantages over other women who might want to speak out publicly about alleged misconduct.

The public interest in Daniels’ story partially insulates her from some of the more pernicious challenges that may come up for women who go public. Because everyone is following the Daniels story, she can publicize efforts to dissuade or pressure her from not going public (see, for example, the focus on the fact that she was allegedly threatened). The interest in and attention to Daniels and her story eliminates one of the more effective forms of retaliation—retaliation that occurs behind closed doors, and outside the public eye. If no one is paying attention to an accuser and her story, it’s easier to make the accuser disappear by firing her, subjecting her to worse treatment, pressuring others to isolate her, making things difficult for her, or just systematically excluding and ignoring her.

That stuff is a lot harder to do when everyone is watching. It’s harder to explain away or ignore mistreatment when you know a woman has spoken out about a #MeToo; it’s easier to rationalize why any particular woman hasn’t been promoted or been included when you don’t know that she’s been vocally critical of how she or other women are being treated (even then, some people will still fail to notice this). But when people are paying attention, it’s more difficult to get away with silencing a woman. Stormy Daniels isn’t in that situation, but many women will be (which is also why the naming-and-shaming approach to Munger might not work in other contexts, for other women, and in other industries).

Daniels has another advantage that’s also related to the interest in her story—money. The lawyers opposing Daniels’ suit have claimed that she is responsible for $20 million in liquidated damages. Even if a court doesn’t ultimately find her liable, the cost of defending against those claims, and the cost of litigating her suit so she can speak out are not cheap. But she’s been able to fundraise for those expenses because of the interest in her story. That’s also not going to be an option for a lot of women.

I've focused in this post on the legal structures that impeded and may continue to impede Daniels from telling her story.  But the underlying story she wants to tell also sheds a light on another point that #MeToo has revealed—the societal and cultural dynamics that make it more difficult, and occasionally dangerous, for women to say no.  Daniels told Anderson Cooper that she didn't want to have sex, but still resisted the label of "victim," because she felt she "had it coming for making a bad decision for going to someone's room alone and ... just heard the voice in [her] head, 'well, you put yourself in a bad situation and bad things happen, so you deserve this.'"  There aren't simple solutions to the fact that society can constrain the choices that are available to women, and the choices that seem available to women, but recognizing and accounting for that dynamic could be a start. 


Systemic solutions shouldn’t get lost in anecdotes about powerful men victimizing women, and powerful women being victimized. While legalisms have enabled the persistence of harassment, they can also help in stopping it.


Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care

June Medical As The New Casey

6/29/20  //  Quick Reactions

As in prior abortion cases, the Chief Justice gave abortion supporters a victory while at the same time laying the groundwork for much weaker protections for abortion rights.

Leah Litman

Michigan Law School