Nondisclosure Clauses in Sexual Harassment Suits: An Olympic Gymnast and Fox News Producer and Host File Suit to Void the Clauses

All three of the women settled sexual harassment suits that they had brought against men who were working with them.  All three of them had nondisclosure clauses in their settlements.  However, the three women, McKalya Maroney, a gold and silver women's gymnastics Olympian, Andrea Mackris, a former Fox News producer, and Rebecca Gomez Diamond, a former Fox Business host, are currently in litigation that has made very public their settlements with men who they say sexually harassed them.

In the case of Ms. Maroney, she received a $1.25 million settlement from USA Gymnastics for years of alleged sexual abuse by the national team's doctor, Larry Nassar.  Ms. Maroney was represented by Gloria Allred, and, according to lawyers for the USA Gymnastics organization,it was Ms. Allred who requested a nondisclosure clause in the settlement agreement.  Under the terms of that clause, Ms. Maroney, she was prohibited from discussing the settlement and/or disparaging the organization or Dr. Nassar.  However, Ms. Maroney has used her Twitter account to disclose that Dr. Nassar began his abuse when she was 13 years old when she first joined the national Olympic team and continued until she left the sport in 2013.  She also alleged that Dr. Nassar abused her on the night that she won her Gold Medal in the London Olympics in 2012.  Dr. Nassar was the team physician for 25 years and attended 4 Olympics. 

The basis of her suit is that such nondisclosure clauses are prohibited under California law.  The clauses are not valid in civili litigation settlements when the underlying conduct for the settlement could be prosecuted as a felony.  Rebecca Davis O'Brien, "Maroney, USA Gymnastics Had Confidential Agreement," Wall Street Journal, December 21, 2017, p. A14.  Dr. Nassar pleaded guilty to federal child pornography charges in July 2017 and was sentenced to 60 months in federal prison.  Dr. Nassar also entered a guilty plea to state charges of first degree sexual abuse. 

Ms. Maroney has alleged that the USA Gymnastics organization was aware of the sexual abuse and took no steps to stop it. Also named in the suit as the US Olympic Committee and Michigan State, which employs Dr. Nassar. The suit alleges that these two organizations were also aware of the abuse but did not take steps to stop it.   Ms. Maroney is asking for damages as well as a release from the nondisclosure agreement. 

Ms. Mackris and Ms. Diamond actually joined a suit that other Fox News employees had filed against Fox News as well as Bill O'Reilly, the former Fox News anchor. The suit requests a release for the women from their confidentiality and non-disparagement agreements that were part of their settlements with Mr. O'Reilly.  However, they also seeking an apology from Mr. O'Reilly and Rupert Murdoch, the head of the 21st Century Fox corporation for the statements they made alleging that their allegations about Mr. O'Reilly were false, which have resulted in damage to their reputations (defamation in that the statements made about them by Mr. Murdoch and Mr. O'Reilly were false and that both men (public figures) knew that they were false. Their damages are that their careers have suffered and that they have experienced emotional harm. For example, they suit alleges that Fox New's statements that no employee of Fox ever took advantage of the 21st Century Fox hotline to report the problems with harassment.  The two women said that they raised the complaints through their lawyers but that the corporation never undertook an investigation. They also seek releases from their nondisclosure and disparagement agreements. Emily Steel, "2 Women Who Settled With O'Reilly Over Harassment Sue for Defamation." New York Times, December 21, 2017, p. B3. 

While nondisclosure and non-disparagement clauses are typical in settlement agreements, the concern in settlement of sexual harassment suits is that the lack of disclosure encourages a culture of fear and silence around reporting harassment nd abuse complaints. 

DISCUSSION STARTERS

Explain why these suits are different from sexual harassment suits.

Discuss whether nondisclosure and non-disparagement clauses in settlements prevent further reviews of employee harassment.