Since 2017, at least twelve states have passed laws restricting their use, according to the National Conference of State Legislatures. New Jersey has gone the furthest, making them unenforceable if victims break them. Google, Microsoft, Uber and Condé Nast have also sworn them off as a tool to conceal abuse.
A small but growing contingent of women have broken their NDAs or worked to be released from them, paving the way for change. McKayla Maroney sued U.S.A. Gymnastics to be released from one she had signed involving Larry Nassar. She was later told by the organization that she would not be penalized. Several women who have accused the singer R. Kelly of sexual abuse have spoken out despite confidentiality agreements. At least four Weinstein accusers have done the same. So far, none appears to have faced legal consequences.
Yet many still can’t speak — Mr. Bryant’s accuser signed a settlement deal in 2005. For the majority of women, especially those whose cases don’t wind up in the news, breaching an NDA can carry extraordinary risk, including the potential for significant financial penalties. And most of the state-level changes have been modest. A new law in California restricts confidentiality agreements once a lawsuit or formal complaint has been filed, but many settlements are signed earlier in the process.
“Women are being silenced every day,” said Nancy Erika Smith, a lawyer who represented Gretchen Carlson in her sexual harassment lawsuit against Roger Ailes, the founding chairman of Fox News. “It is a hammer designed to shut women up.”
Mr. Bloomberg’s move to rescind the confidentiality agreements was a high-profile victory for #MeToo, but the circumstances were unique. Senator Elizabeth Warren, his competitor for the Democratic nomination, had used a presidential debate stage to pummel him on the issue.
Beyond that instance, it is not clear what or who will force further change on NDAs, or more broadly, the wide array of other #MeToo-related issues. Even though the movement has been fueled in part by sexual abuse allegations against President Trump, his challengers on the left have not discussed ending sexual abuse the way they discuss reforming health care or halting climate change. Beyond Ms. Warren’s moment, there has been almost no talk about a broad, transformative #MeToo agenda at the Democratic debates.
“It’s largely missing from the political conversation, especially given the cultural conversation that’s happening,” Ms. Goss Graves said.