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37 Geo. J. Legal Ethics 1 (2024)

handle is hein.journals/geojlege37 and id is 1 raw text is: ARTICLES Balancing Private and Public Interests in the Disclosure of Sexual Harassment Information GREGORY MITCHELL* ABSTRACT Legal ethicists, advocacy groups, and politicians have called for greater restric- tions on the use of nondisclosure agreements (NDAs) when parties resolve sexual assault and sexual harassment claims, and recently broad bans on the use of NDAs have been put in place. However, as shown by the original empirical research reported here, most members of the public recognize that nondisclosure may be appropriate in some cases and support allowing parties to a dispute to bargain over privacy. A large-scale survey found that public concern about NDAs depended on a variety offactors, including the level of compensation paid to the claimant to settle a matter, whether both parties had counsel, and whether the NDA contained an excep- tion allowing disclosure if the accused harasses again. Furthermore, most respond- ents believed that the disclosure of information should be determined on a case-by- case basis, even where the alleged behavior was quite serious. NDA reforms that pre- serve the right of parties to bargain over privacy but condition that privacy on the accused's good behavior would better balance private and public interests in sexual harassment information than reforms that bar any use of NDAs. TABLE OF CONTENTS INTRODUCTION ................................................ 2 I. EXISTING AND PROPOSED LIMITATIONS ON NDAS .......... 7 A. FEDERAL LAW RESTRICTIONS. ............................ 8 B. STATE LAW RESTRICTIONS .............................. 11 * Joseph Weintraub - Bank of America Distinguished Professor of Law & Thomas F. Bergin Teaching Professor of Law, University of Virginia School of Law, greg.mitchell@law.virginia.edu. Rip Verkerke and participants in a workshop at the William & Mary Law School provided helpful comments on an earlier version of this paper. All errors are mine. ( 2024, Gregory Mitchell. 1

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