Titled “Pass-the-Trash”: How Universities Use Non-Disclosure Agreements to Protect Sexual Predators, Macfarlane will deliver Ohio State’s 2019 Schwartz Lecture on Dispute Resolution on Wednesday March 20 in Moritz’s Saxbe Auditorium. Use this link to register, go.osu.edu/schwartz2019. A description of Macfarlane’s lecture follows:
The use of non-disclosure agreements (NDAs) in cases involving termination for sexual misconduct has garnered growing attention. Plaintiffs’ lawyers frequently utilize NDAs to ensure that their clients may transfer to another position without the circumstances of their dismissal becoming known. Universities and other employers often see these Faustian deals as a way to head off potentially costly legal defenses, and as a sweetener to encourage settlement.
A strong moral case can be made against NDAs for terminations involving sexual misconduct (assault, harassment). Moreover, case law is emerging in the United States and Canada that holds NDAs to be unenforceable on public policy grounds, where public institutions such as universities use them without regard for student or public safety. In her lecture, Professor Macfarlane will consider procedures and processes universities could adopt in order to ensure that NDAs are not permitted in such circumstances, and that termination decisions predicated on sexual misconduct are supported by thorough, competent investigations and fact-finding.
The Schwartz Lecture on Dispute Resolution was established in 1992 as a result of the generosity of the late Stanley Schwartz Jr. (a 1947 Moritz College of Law graduate) and the Schwartz family. Each lecture is published in the interdisciplinary Ohio State Journal on Dispute Resolution, in keeping with Mr. Schwartz’s interest in the promotion of scholarly publication in the area of dispute resolution..