A wave of resignations has sparked controversy and confusion surrounding the Miss USA beauty pageant, but the voices of the women and girls at the center of the crisis have gone largely unheard.
Family members and fellow contestants insist there is a reason for the silence. Due to non-disclosure agreements, former Miss USA pageant winners cannot reveal the details of their reasons for resigning.
In that case, it may be difficult for the public to understand the details. After all, non-disclosure agreements are designed to keep information confidential.
This is a common situation for Americans who find themselves at odds with employers or other powerful organizations with whom they once worked. Thanks to a common (and sometimes controversial) business agreement called the NDA, anything you say can carry stiff legal penalties.
Experts told USA Today that nondisclosure agreements are routine in many workplaces and are often intended to protect confidential information or trade secrets. But non-disclosure agreements carry ethical risks, especially when the agreements are used to keep embarrassing information about a company out of the public domain.
In the most egregious cases, NDAs are used to cover up serious misconduct. They were infamously used by Harvey Weinstein as part of an elaborate scheme to silence victims of rape and sexual assault.
Here’s what you need to know:
What is an NDA?
A non-disclosure agreement is an agreement between two parties that protects confidential information from being shared. NDAs have become so common in the workplace that more than one-third of all employees in the United States have signed a his-her NDA, according to a magazine report published by the American Bar Association.
Because NDAs are confidential in nature, the public’s insight into their use and scope may be very limited.
Agreements typically include restrictions on the type of information that can be shared and details penalties for non-compliance. It may also be part of post-conflict settlements.
“For example, if workers have access to a company’s secret recipes, it makes sense to make them promise not to post those secret recipes on Facebook or Instagram,” says Professor Nora Freeman Engström. She is at Stanford Law School. “But other types of her NDA may be completely unreasonable.”
Like all contracts, NDAs cannot restrict reporting of illegal activity, but experts told USA TODAY that broad agreements with high penalties can intimidate people into silence when they witness wrongdoing. He said it is possible.
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Why are NDAs so confusing?
There are many different types of NDAs, and experts say they can be used for both good and bad intentions.
One type of contract is typically signed at the beginning of a relationship between two parties, such as when someone starts working. Many of these types of NDAs are reasonable and designed to prevent the sharing of trade secrets or confidential information, says Airbnb’s former general counsel and author of Intentional Integrity: How Smart Companies Can Lead an Ethical Revolution. says Rob Chesnutt, author of .
However, it is also written so broadly that it may prevent people from speaking up if their employer has acted unethically.
Broad NDAs in the workplace “have the potential to stifle speech, isolate individuals, and perpetuate toxic workplaces,” Engstrom said.
Another type of NDA is created after a dispute arises between the parties. It is used as part of a so-called “secret village.”
It’s unclear what kind of NDA the Miss USA winner signs, but Chesnut said it’s likely all contestants had to sign non-disclosure agreements before competing. The Miss USA organization did not respond to a request for comment.
Why are NDAs controversial?
Non-disclosure agreements have come under intense national scrutiny in recent years after prominent men revealed that they had used them to silence victims of sexual harassment and assault allegations. ing.
In Weinstein’s agreement, victims were paid large settlements and signed agreements promising never to talk about the allegations. NDAs can result in “severe” penalties and large fines if broken, Engstrom said. Weinstein’s NDA reportedly even included a clause requiring the victim’s therapist to sign the NDA.
“The #MeToo movement has put a spotlight on the post-conflict NDA,” Engstrom said.
In response to #MeToo, several states have taken steps to limit post-conflict agreements regarding sexual assault and harassment. Congress also passed the Speak Out Act in 2022, making agreements signed before disputes involving sexual assault or harassment unenforceable.
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What happens if I break an NDA?
Because NDAs are enforceable contracts, Engstrom said, penalties for breach are usually specified in a “liquidated damages” clause.
“Sometimes these damages are modest and reasonable, but sometimes they can be harsh,” she said.
If you violate your NDA, you could face lawsuits and pay hefty fines.
At best, these penalties are intended to ensure the confidentiality of corporate information. But because the penalties can be severe and life-changing, NDAs can also be a very effective tool to intimidate victims into silence, Chesnutt said.
On the flip side, in today’s world, secrets are much more likely to be revealed due to swirling rumors, leaks, and social media.
“Malicious acts that were once hidden away and protected by non-disclosure agreements are no longer so easily kept secret,” Chesnutt said. “It’s like steam. The pressure will increase, but it will be resolved one way or another.”
