Since 2017, at least twelve states have passed laws restricting their use, according to the National Conference of State Legislatures. New Jersey has gone the furthest, making them inapplicable if the victims break them. Google, Microsoft, Uber and Condé Nast have also sworn them as a tool to cover up abuse.
A small but growing number of women have broken their NDA or worked to be released, paving the way for change. McKayla Maroney sued the United States in gymnastics for release from the one she signed involving Larry Nassar. The organization later told her that she would not be penalized. Several women who accused singer R. Kelly of sexual abuse spoke out despite the confidentiality agreements. At least four of Weinstein’s accusers have done the same. So far, none seem to have suffered any legal consequences.
Yet many still cannot speak – the accuser of Bryant signed a settlement agreement in 2005. For the majority of women, particularly those whose cases do not end in the news, the violation of a NDA may involve extraordinary risks, including the potential for substantial financial penalties. And most of the changes at the state level have been modest. New law in California restricts confidentiality agreements once a formal legal action or complaint has been filed, but many agreements are signed earlier in the process.
“Women are silenced every day,” said Nancy Erika Smith, a lawyer who represented Gretchen Carlson in her sexual harassment lawsuit against Roger Ailes, founding president of Fox News. “It is a hammer designed to lock up women.”
Bloomberg’s decision to cancel the confidentiality agreements was a great victory for #MeToo, but the circumstances were unique. Senator Elizabeth Warren, his competitor for the Democratic nomination, had used a stage of the presidential debate to club him on the question.
Beyond this instance, it is unclear what or which will force further changes to NDAs, or more broadly, the wide range of other issues related to # MeToo. Even though the movement was fueled in part by allegations of sexual abuse against President Trump, his leftist opponents did not discuss the end of sexual abuse as they discuss health care reform or the stop climate change. Beyond Ms. Warren’s time, there was virtually no mention of a vast #MeToo transformative agenda in the Democratic debates.
“He is largely absent from the political conversation, especially given the cultural conversation that is taking place,” said Ms. Goss Graves.