Should we get rid of NDAs for sexual harassment?

First, what about false accusations? While not common, there are circumstances in which someone is wrongly accused of sexual misconduct. It can be cheaper and quicker to settle the allegation than to go to court to clear one’s name. Confidential settlement agreements allow the falsely accused to keep their reputations intact.

Second, what about victims who do not want to be identified? Confidential settlement agreements work both ways. They prevent both the accuser and the accused from discussing the substance of the agreement. Even in the era of the #MeToo movement, some accusers will be reticent to come forward for fear of social or professional retribution. We could create a rule in which the accuser, but not the accused, could remain private, but this would open up a Pandora’s box of legal and practical problems.

Third, without confidential settlement agreements, will parties ever agree to settle their claims?