Written by: John Dalton
| Read Time: 4 minutes

You are likely already aware of Harvey Weinstein’s recent convictions for rape and the years of allegations that he regularly committed sexual harassment and sexual assault in the workplace. And now, a film called “She Said” highlights the harrowing accounts of many of Weinstein’s accusers. In the film, two female New York Times reporters work to give voices to several women who spoke out against Weinstein and the traumatizing and hostile working environments he and his enablers created. This is an important story, and it not only places a spotlight on the egregious behavior that many assault survivors have had to endure in workplaces in Hollywood, but it also calls attention to what survivors have had to endure in workplaces across the country and worldwide.        

Maybe you saw “She Said” to understand the background of the convictions and allegations against Weinstein. Maybe you saw the film to support his survivors. Or maybe you saw the film just to see it. Whatever your reason for seeing “She Said,” there are vital legal takeaways the movie presents. If you have endured assault or harassment in your workplace, attorney John Dalton can help protect you and ensure you receive justice. John has decades of experience and a dedication to protecting employees in California from mistreatment. 

When Is It Sexual Harassment?

Sexual harassment comes in many forms. Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act outlaw sexual harassment in the workplace.

State and federal laws define unlawful sexual harassment as unwanted, sex-based conduct that can include (but is not limited to) the following

  • Offensive jokes,
  • Slurs,
  • Non-consensual touching,
  • Repeated requests for dates or romantic encounters,
  • Comments about appearance or body parts,
  • Comments on what you are wearing;
  • Use of “pet names” instead of your actual name;
  • Displays of graphic content, 
  • Exposures of private body parts,
  • Comments regarding sex-based or gender-based stereotypes,
  • Invasions of personal space,
  • Conversations or questions about sexual activity,
  • Taking pictures without permission, 
  • Demands for sexual favors in exchange for work benefits, and 
  • Excluding others in the workplace based on sex or gender.

As the New York Attorney General points out and alleges, Harvey Weinstein was criminally and civilly liable for multiple types of workplace sexual misconduct, up to, and including, rape.

Intimidation Tactics Harassers Use to Perpetrate Sexual Harassment

Harassers use intimidation not only to commit sexual assault and harassment against their employees but also to prevent employees from seeking the justice they deserve. Harvey Weinstein and his cohorts were accused of using the following methods to silence his victims: 

  • Threats of job termination,
  • Non-disclosure agreements (NDAs),
  • Threats of professional ruin, and
  • Non-disparagement agreements. 

Many non-disclosure and non-disparagement contracts that assault survivors and harassment victims have signed over the years were attached to settlement money. If you have signed an agreement to stay silent in exchange for money, we understand and it is your right. However, we hope you know that you likely have more legal rights than you think, even after signing a non-disparagement or non-disclosure agreement. 

How Far Can a Confidentiality Agreement Go?

Maybe you signed a non-disclosure agreement when you first started a job with an abusive or harassing employer. Or maybe you signed a non-disparagement agreement with your employer to settle a sexual assault or harassment complaint. Does that mean that your employer’s unlawful or criminal behavior against you must always remain a secret? No, not necessarily. Depending on the circumstances under which you signed a confidentiality agreement, there are state and federal laws that protect your right to discuss your trauma and seek legal relief. 

Federal Law

The federal Speak Out Act was enacted on December 7, 2022, and its purpose is to protect the rights of sexual harassment victims and assault survivors. Pursuant to the Speak Out Act, non-disparagement and non-disclosure clauses in employment agreements are unenforceable in regard to sexual harassment or assault disputes that arise after the agreement is signed. And if you endure harassment or an assault before you sign a confidentiality agreement, your employer’s attempts to silence you might still be illegal and futile (see below).   

California Law

On October 7, 2021, the State of California enacted legislation to prevent employers from misusing contracts to silence the employees they mistreat. Sections 1001 and 1002 of California’s Code of Civil Procedure prohibit employers from entering settlement agreements that prevent employees who initiate sexual harassment or assault complaints from disclosing factual information related to those complaints. So, if you accept money under a settlement agreement regarding your employer’s sexual misconduct, do not think that it means that the agreement forecloses you from talking about what you have endured. Speak to an experienced sexual harassment lawyer about your options. 

Also, remember that California courts refuse to enforce unconscionable contracts, which can include unconscionable terms in a non-disclosure or non-disparagement agreement. And what is an unconscionable contract? A contract is procedurally unconscionable if it is oppressive or surprising because there was unequal bargaining power between the parties. And a contract is substantively unconscionable if its terms are “shocking to the conscience” because they are overly harsh or one-sided. 

Have you signed an NDA that prevents you from seeking therapy or professional help after suffering sex-based trauma? There’s a good chance that the agreement is unconscionable and unenforceable. Once again, speaking to a lawyer can give you peace of mind regarding your options after signing an agreement in a workplace sexual misconduct dispute. 

Is It Ever Illegal to Disclose an Accusation? 

If you stick to the facts, disclosing an accusation of harassment or assault is usually perfectly legal. However, you should be careful about how much you share and to whom you disclose the information. If you have some of your facts about an accusation incorrect, you could subject yourself to a costly defamation lawsuit. And if your disclosure of an accusation also includes disclosure of your employer’s trade secrets or proprietary information, you could be subject to harsh civil penalties. When you are ready to share your experience with an unscrupulous employer, it is best to consult with a knowledgeable employment attorney first. 

The Law Offices of John Dalton Are Here for You

At the Law Offices of John Dalton, we cannot tolerate employers that misuse their power, and we know how to hold them accountable. John Dalton has been in practice for over 25 years and does not back down from big businesses and organizations. John has also won some of the largest employment law verdicts in the State of California. 

Our firm approaches each case with decades of expertise, diligence, and compassion. We are here to protect you and win the justice you deserve. Please give us a call or contact us online if you need help. Your story and your safety are important to us.

    “I highly respect John and his dedication and integrity. You will not be disappointed.” John Dalton went to work for me and delivered great results. I wasn’t sure what to do and when I found John, he explained everything nicely and he was able to get me the settlement I truly deserved. He was easy to work with and I always felt like I was kept in the loop - it was really fantastic service all around. - Steve K.
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