Vile straitjacket that lets world's Weinsteins do whatever they want
A contract designed to protect company secrets has mutated into an abusive tool
Twenty years ago, I walked into the offices of a reputable law firm in London, my 24-year-old self confident that they would help me to expose and address the appalling behaviour of my then boss, Harvey Weinstein.
His continuous and exhausting harassment and vile conduct had come to a head when a terrified assistant came to me alleging he had assaulted and tried to rape her. It quickly became apparent that his company – and my employer – Miramax could not provide assistance in bringing him to justice.
Having resigned from my job, the only route now available was to officially expose him to the law. Nothing could have prepared me for the ways in which the British legal system would fail my colleague and me so thoroughly.
Nobody could have explained to me the irreversible impact of entering, on my lawyers’ advice, into a damages contract with extreme confidentiality clauses, otherwise known as a non-disclosure agreement (NDA). Ultimately, due to the enormous disparity of power and wealth between ourselves and Weinstein, we were given no choice but to sign the agreement.
It forbade us from talking not only about Weinstein’s behaviour but about our entire careers at Miramax, to family, friends, medical practitioners including therapists, even to Her Majesty’s Revenue and Customs (HMRC) if questioned about the payment. We were not to assist the police if criminal action were taken against him. I was not even allowed to have a copy of the document that was to control my life.
And we were left with the impression that we could face jail and financial ruin if we breached it.
My attempt to report Weinstein’s behaviour cost me my career. While he collected Oscars, I endured job interviews where I was openly questioned about my “personal” relationship with him, but I was gagged from telling the truth.
The frustration and humiliation drove me to move abroad for five years. In October last year, shortly after the first revelations about Weinstein came to light, I publicly broke the NDA, despite my lawyers’ reiteration that I could still face legal action. I felt an urgency to expose the fact that his behaviour was in truth a symptom of a much wider problem, which the salacious revelations were distracting from.
Disparity of power
There will always be predators and bullies like Weinstein. The problem is the system that enabled his behaviour, and the currency of power and wealth that allows abusive employers to hide their crimes and buy their victims’ silence.
To my delight, this has been powerfully brought to light by the extraordinary events of the past week, in which Sir Philip Green was named in parliament as the businessman who brought an injunction against The Daily Telegraph to prevent the publication of allegations against him.
Clearly, NDAs remain a powerful tool, and are just as devastating for equality and justice as they were 20 years ago. These agreements are not just being used to hide the incontinent behaviour of sexual predators. They also cover up discrimination with regard to race, disability and gender; environmental accidents; bullying, malpractice and abuses of power in organisations across all sectors.
They provide settlement payments that clean one person’s slate and gag another’s, most often from shareholders’ money or the public purse – oh, and it’s tax deductible.
The disparity of power between perpetrator and victim is undeniable: witness Sir Philip Green speaking freely to a Sunday newspaper to dismiss the recent allegations as “banter”, while his employees remain gagged by his NDAs.
Britain now needs strong, decisive action from the government.
What was originally a reasonable contract designed to protect company secrets has mutated into an abusive straitjacket that stifles warnings about mistreatment and hides criminal behaviour, allowing perpetrators to continue with impunity.
Do NDAs have a place in the workplace at all? Some argue that victims often opt for an out-of-court settlement because it offers them protection from potential further humiliation. Yet this is a shortsighted view, which serves only to uphold skewed attitudes towards abuse. There should be no shame or fear in reporting bad behaviour at work.
We need a seismic change in how we view abuse in the workplace, so that no victim is compelled, as I was, to enter into a coercive monetary agreement as the best or only possible outcome.
Governments should ban NDAs in the workplace – following the lead of California, which recently made the use of them illegal. As Senator Connie Leyva put it, these agreements only perpetuate certain employers’ poor behaviour since they can “repeatedly offend with no public accountability”.
The maltreatments hidden by NDAs are undoubtedly in the public, and future employees’ interest, and should be open to proper scrutiny. This technical issue is at the very root of the socio-cultural problem that sparked the #MeToo movement. It is at last receiving the attention it deserves, providing leaders with a unique opportunity to reform the legislation around NDAs and clarify the right to call out abuse, discrimination and poor behaviour in the workplace.
• Zelda Perkins is Harvey Weinstein’s former assistant.
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