Confidentiality Under a Microscope

Influx of harassment claims may have implications for the future ofnon-disclosure agreements

News of sexual harassment allegations against famous figure after famous figure has flooded the public sphere in nearly every imaginable way over the past few months, from non-stop media coverage to a now-iconic hashtag. Along with the allegations have come increased scrutiny of the agreements that have kept them from coming to light for years, such as those of confidentiality and mandatory arbitration.

Federal legislation introduced this month would render mandatory arbitration for harassment claims unenforceable. Microsoft, which announced on Dec. 19 it has eliminated mandatory arbitration agreements for employees who make allegations of sexual harassment, expressed support for the legislation. This conspicuous microscope makes the days of confi dentiality and arbitration agreements in harassment cases look suddenly numbered, but the new influx of criticism seems to be a watershed moment for what has actually been a long-held disapproval by experts in harassment cases.

Rita Kittle, a supervisory trial attorney for the Equal Employment Opportunity Commission, said by the time she left private practice in 1999, she had developed a reluctance to form confi dentiality agreements in the employment cases she litigated. She explained the agreements always seemed more onerous on the employee than the employer.

Kittle said in an email that although the Microsoft announcement could influence other companies to follow their lead and also drum up support for the newly introduced legislation, companies will likely still use arbitration and confidentiality.

To read this story and other complete articles featured in the December 26, 2017 print edition of Law Week Colorado, copies are available for purchase online.