Despite what was written in a recent New Jersey Law Journal commentary (“Keeping Harassment Settlements Confidential After S121″), the statute recently signed into law by Governor Murphy is clear, unambiguous, and provides a real benefit to employees who for years have been kept in the dark regarding other claims of harassment and discrimination that had been resolved by their employers or former employers. It would seem, however, that the author is suggesting that the management bar adopt the “Catch and Kill Technique” used so often by entities like the National Enquirer to silence sexual harassment and discrimination victims. Surely, our role as attorneys is not to figure out an unsavory way of trying to get around a statute that is designed to protect the thousands of those victims.

The author attempted to downplay her shocking suggestion by calling it simply “purchasing” a story. It is much more than that. To do what the author suggests has the effect of concealing the details of a discrimination or harassment claim, a clear violation of S-121. A “Catch and Kill” agreement would be illegal and against public policy under S-121, which specifically states that any person “who enforces or attempts to enforce” such a (confidentiality) provision shall be “liable for the employee's reasonable attorney's fees and costs.”

S-121 is good public policy. The main thrust of S-121 is to expose harassers so that their outrageous conduct can be stopped. How many of Harvey Weinstein's 80 or so victims could have been saved if the many monetary settlements were not confidential? As we now know, when the history of Harvey Weinstein's conduct became public, he was shamed, fired, and is in the process of being prosecuted. How long would that conduct have continued if it remained a “secret”? Conversely, how many other innocent victims of similar vile conduct by others would have been prevented if it were exposed sooner? The “me too” movement has fortunately opened all of our eyes to conduct that has been kept secret for years. S-121 goes a long way to preventing this type of behavior in the future.

Employers have claimed that doing away with confidentiality will prevent or hinder future settlements. There is no data to back this up, and nothing was produced before the Legislature to even remotely prove this point.

The author, clearly someone who does not represent the thousands of New Jersey residents who are harassed, discriminated against and retaliated against by their employers, is providing a blueprint for employers to “get around the statute.” This certainly should not be condoned, and she should be ashamed for writing such a piece.

Unfortunately, there is still a great deal of harassment and discrimination in the workplace. Statutes like S-121 will help peel away this wall of secrecy that companies and individuals love to hide behind.

Evan L. Goldman is a partner in the Law Firm of Goldman Davis Krumholz & Dillon in Hackensack and Jersey City. He focuses on employment law and is currently the president of the National Employment Lawyers Association, New Jersey Chapter.