By: Gianni Piantini, Member-Candidate, J.D. Candidate, May 2020, St. Thomas University School of Law.

In the wake of a cascade of sexual harassment accusations from dozens of celebrities against other celebrities in power, the attention has turned to Hollywood by questioning it as to why the entertainment industry has not instilled regulations to prevent such sexual abuse in the workplace. The stream of sexual harassment allegations in the entertainment industry stem from a New York Times investigation which revealed decades of sexual abuse at the hands of prominent film producer, Harvey Weinstein (“Weinstein”). Throughout the investigation, numerous actresses including Angelina Jolie, Gwyneth Paltrow, and Ashley Judd went on record and reported specific sexual misconduct allegations against Weinstein dating back to the early 1990s. Ashley Judd, for instance, was invited to Weinstein’s hotel room for what she believed was a meeting. Instead,
Weinstein appeared in a bath robe, offering her a massage and to watch him in the shower.

This investigation sparked outrage throughout the entire nation, leading to a #MeToo movement where individuals, both in the entertainment industry and regular citizens, shared their experiences with sexual harassment. Although Weinstein was fired from the Weinstein Company and ousted by the Academy of Motion Picture Arts and Sciences, he was able to silence his victims for decades simply because of nondisclosure agreements (“NDA”) he included in clandestine settlement agreements with these victims.

NDAs are typically included in contracts and are provisions in settlements, where the aggrieved party agrees to keep the terms and details of the settlement confidential in exchange for monetary compensation. If the NDA is breached, the other party may sue for injunctive relief or damages. NDAs are popular in cases of sexual harassment, especially in the entertainment industry where the perpetrator’s renowned reputation is at stake. Proponents of NDAs argue that the NDA lessens the possibility of expensive litigation, where the sexual harasser would have less incentive to settle or to provide redressability to the plaintiff.

Critics, on the other hand, emphasize that NDAs protect the perpetrators of sexual harassment, which in turn, allows them to continue sexual abuses towards their employees. Because Weinstein had such a successful career, he was able to induce settlement with his victims before the accusations became public. Through these settlements with numerous figures in the entertainment industry, Weinstein was able to keep his victims from discussing his sexual misconduct and hostile working environments. This allowed Weinstein to continue engaging in sexual misconduct toward dozens of women without facing the repercussions of his actions. Weinstein, like many others who have acquired similar power and distinction in the entertainment industry, have prevented
numerous victims from coming forward and discrediting him in public, as these women are afraid of losing their opportunities for success or being sued for breaching the NDAs.

In 1980, the Equal Employment Opportunity Commission (“EEOC”) issued regulations prohibiting sexual harassment in the workplace under the Civil Rights Act of 1964. In addition, Title VII of the Civil Rights Act abrogates settlement agreements which prohibit employees from
filing sexual harassment claims against the employer. Provisions that require censorship and silence, thus, violate the Civil Rights Act. However, these rights are still far from being enforced in the entertainment industry, where employers often threaten and restrict their employees with immunity. The human resources departments in many entertainment companies do not enforce such rights and many are even complicit with the harassers themselves, as the employees in these
departments are unlikely to provide information about their employers that may terminate their careers.

This is a notable issue in the entertainment industry that has an undeniable recurrence, as demonstrated by the fact that numerous celebrities have spoken up about their experiences with sexual harassment in the entertainment industry throughout the last year. Today, attorneys in the entertainment industry are looking for solutions to this issue without removing NDAs. However, NDAs have devastating consequences, as they are continuously perpetuating sexual harassment by individuals with power and money, who can get away with their misconduct through secret out-of-court settlements.