Sexual harassment cases usually don't settle unless the plaintiff agrees to sign a confidentiality agreement which prohibits the plaintiff from disclosing the terms of the settlement. The demand for confidentiality is typically requested by the defendant/employer. So what happens when the defendant in a sexual harassment case is a governmental entity in the State of New Jersey and a request to produce a settlement agreement marked confidential by the parties to the lawsuit is made by a third party under the New Jersey Open Public Records Act (OPRA)? OPRA is a New Jersey State law that requires the disclosure of most public records upon request?
According to the New Jersey Appellate Division, a settlement agreement resulting from a civil lawsuit is a record which must be produced in response to a request under OPRA. In Asbury Park Press v. County of Monmouth, et al., the Appellate Division held that although OPRA specifically excludes from disclosure complaints of sexual harassment by an employee to a public employer, nothing in the statute states that the sexual harassment exclusion should be applied to lawsuits filed in the Superior Court. The Court's ruling means that any record of an employee making a complaint of sexual harassment directly to the employer may not be disclosed under OPRA, yet, that same complaint, if embodied in a court document filed under seal, may be subject to disclosure. The Court opined that the public disclosure of settlements may encourage victims to come forward with complaints of sexual harassment.
While New Jersey case law favors disclosure of public records, the effect of the Court's opinion will certainly bring on significant scrutiny of the settlement of employment discrimination cases. Public employers may find themselves in the position of having to defend the payment of a large settlement. In the end, the Appellate Division's decision may actually hinder the settlement of employment discrimination cases brought against public employers.
