BOSTON — Disgraced Hollywood producer Harvey Weinstein and Fox News star anchor Bill O'Reilly are accused of hiding allegations of sexual harassment for years with out-of-court settlements and nondisclosure agreements that forbid the parties from talking about the cases.
Once used only by high-tech firms to protect trade secrets, nondisclosure agreements are increasingly shielding powerful men from accusations of abuse or rape, say victims-rights advocates who are pressuring state legislatures to restrict the practice.
A proposal on Beacon Hill would ban such agreements if they involve claims of discrimination, harassment or retaliation in the public and private sectors.
"These agreements are protecting sexual predators while isolating the victims," said state Rep. Diana DiZoglio, D-Methuen, lead sponsor of the legislation. "They prevent victims from discussing what happened to them, even among their family members, or warning other potential victims."
DiZoglio's proposal also would bar forced arbitration clauses — under which workers waive their rights to sue in court over issues such as discrimination, and instead agree to private, confidential proceedings. Such clauses favor abusive employers, DiZoglio said, because they are allowed to censor and threaten workers with impunity.
"It sends a message to our communities that if you have enough money and power, you can get away with predatory behavior,” she said.
The proposal is opposed by the powerful Associated Industries of Massachusetts, which argues that arbitration and other nonjudicial remedies help resolve workplace conflicts.
Banning it would clog the courts with employment law cases, the group said.
"These remedies relieve an overburdened court system and allow employers and employees to resolve disputes in a way that is fair to both," Chris Geehern, the group's executive vice president, said in a statement.
A firestorm surrounding the public accusations of sexual harassment against Weinstein and other men, fueled by the #MeToo movement, has focused public attention on the ability of wealthy and powerful people to avoid scrutiny for decades despite repeated allegations.
Weinstein, who stepped down from his company's board in October, was accused by multiple women of using confidentiality pacts to buy their silence, though he has claimed the encounters were consensual.
Before he stepped down at Fox News, Bill O'Reilly is reported to have paid $32 million to a network employee to settle a sexual harassment accusation, one of many such agreements the conservative commentator signed over the past decade.
Still, legal experts say a ban on nondisclosure and arbitration clauses raises constitutional issues and could end up hurting the accusers.
"Nobody wants to shield a sexual abuser or someone with a history of harassment, that's a legitimate goal," said Martin W. Healy, chief legal counsel and operating officer of the Massachusetts Bar Association. "But the Legislature attempting to restrict these private agreements raises constitutional issues."
Some victims might want the privacy of a confidentiality agreement because of their own career aspirations, he said, or a desire to put an embarrassing issue behind them. In other cases, settlements of workplace disputes involve large sums of money that a victim might not want publicly disclosed.
"This is certainly well-intended legislation but it may end up, in some instances, further exploiting the victim," Healy added.
More than a dozen states restrict the use of confidentiality clauses in settlement agreements involving so-called "public hazards" or individuals who are considered dangerous, according to the National Conference of State Legislatures. Several others are considering similar limits.
Last year, California enacted a law that prohibits confidentiality clauses in civil lawsuits involving felony sexual assault or child sexual abuse.
Meanwhile, attorneys general throughout the country, including Massachusetts Attorney General Maura Healey, are calling on Congress to outlaw mandatory arbitration in workplace sexual harassment claims.
The U.S. Supreme Court is scheduled to issue a ruling in a case that could determine the future of such agreements.
At issue is whether employers can require workers to sign arbitration agreements in which they give up their right to bring class-action suits to address workplace disputes.
DiZoglio's bill is before the Legislature's Joint Committee on Labor and Workforce Development, which has given committee members until April to move the proposal to a vote. The legislation would also need approval from the Senate and survive Gov. Charlie Baker's veto pen to become law.
"These kinds of agreements have no place in the government or private sectors," DiZoglio said. "They were never intended to empower sexual predators."
Christian M. Wade covers the Massachusetts Statehouse for North of Boston Media Group’s newspapers and websites.