The law’s commitment to neutrality can wind up punishing our most vulnerable citizens

Kesha’s case is exposing crucial gaps in contract law.
Kesha’s case is exposing crucial gaps in contract law.
Image: AP Photo/Mary Altaffer
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Contract law rarely makes front-page news. But pop singer Kesha’s legal battle over recording agreements that bind her with her alleged abuser has a lot of people wondering about what workers can—and can’t—be required to do.

The hashtag #FreeKesha has lit up social media in recent weeks after a New York judge refused to grant Kesha a preliminary injunction releasing her from a series of contracts, including one with Kemosabe Records. That label, which is owned by Sony Music, is run by producer Lukasz Gottwald, the man she says raped and abused her.

To many, the case appears simple. The court could force a young woman to work with a man she says sexually assaulted her, or it could grant her freedom.

In fact, the case is more complicated. And it highlights how the law can compartmentalize disputes in ways that seem at odds with feminist values. Here are a few lessons from the case:

Lesson #1: No one can force anyone to work.

Contrary to the headlines, no court can order Kesha to work with her alleged abuser. That’s because of the 13th Amendment of the United States Constitution. The amendment prohibits “indentured servitude,” which encompasses slavery but also includes court-ordered performance of an employment contract. So if Kesha wants to walk away from her contracts before she’s completed all the albums she agreed to make, she can.

But there’s an important caveat: The recording companies can sue the artist for damages for breaching the contract. If the potential damages in question are too high, the artist may well feel that she has no choice but to continue working for a given company—unless she can get a court to void the contract.

Lesson #2: But financial considerations can leave workers with limited choices.

Kesha’s case has relevance for people outside of the entertainment industry. Many workers are “at-will employees,” meaning that they can resign whenever they like and their employer can terminate them whenever it likes, as long as it is not for a legally prohibited reason such as discrimination.

But some employees, such as teachers, do have employment contracts. And many others provide services under a contract without being employees, including contractors, web designers, and caterers. In all of these instances, if an employee wants out of the contract, they are potentially liable for damages caused by their leaving. That can leave them effectively bound to their employers.

In one well-known case, Handicapped Children’s Education Board v. Lukaszewski, a teacher resigned partway through the school year, ostensibly because of health concerns—but more likely because of personality conflicts with her principal. The court ruled that her health concerns didn’t justify her leaving, and therefore assessed damages against her. The school had only been able to find one other teacher mid-year and had to pay the new teacher more money. So the teacher who had resigned had to pay the difference between the two salaries as damages.

Lesson #3: Sexual abuse is indeed grounds for terminating a contract.

Kesha’s attorney has claimed that this is the first time a court has had to decide whether sexual abuse voids a recording contract. Although that is not technically accurate, others have suggested that contract law is too skewed in favor of male privilege to recognize such grounds.

In fact, it can be argued that contract law was designed—albeit subconsciously—to protect male privilege. Generally speaking, women in Europe and the United States didn’t even have the ability to enter into a contract until about 150 years ago. Before that, women were thought of as something people contracted for.

Marriage contracts, for example, were arranged between the prospective bride’s father and the prospective groom, not between the future husband and wife. And once married, if a woman was going to contract to work for someone—say, as a housekeeper—the contract was between the prospective employer and the husband, not the woman herself. That history of exclusion cannot help but color the foundations of contract law.

Despite that history, contract law today is theoretically capable of allowing a person who proves that her contract partner has sexually abused her to get out of the contract. Every contract includes an implied duty to act in good faith, and sexual abuse indisputably violates that term.

Lesson #4: But contract law and feminist values are often at odds.

A more fundamental problem with sexual abuse in the context of contracts is that contract law presumes that both parties in a contract are capable of protecting their own interests. The assumption is that both parties have bargaining power. So it is not particularly adept at dealing with situations where one contract partner is vulnerable. Conversely, feminism is acutely attuned to the potential for abuse where there are power imbalances.

And the entertainment business is rife with power imbalances. Stories of powerful men taking advantage of young women are so common as to be almost cliché.

Kesha was just eighteen when she first signed with Gottwald. But she was represented by an attorney, and was taking advice from her mother, who had a music career of her own. So contract law presumes Kesha knew what she was getting into and was capable of protecting her own interests.

Feminism, in contrast, would take note of the power imbalance between Gottwald, a major player in the industry with significant bargaining power, and Kesha, a young unknown artist just starting out in the business. There would be clear reason to be concerned about the potential for abuse and exploitation in that situation.

Another case involving sexual abuse in the context of contracts is that of Angelo Garcia, a former member of the boys Latino pop group Menudo. After leaving Menudo for a solo career, Garcia signed on with World Wide Entertainment. Within a matter of months, he sued WWE in Puerto Rico, seeking to have the exclusive recording and management contracts voided. He sought to void the contracts on the basis that he had been sexually abused by someone at WWE. (The abuser is not named in the opinion.)

Garcia couldn’t be compelled to work for the recording and management companies, but they wanted to bar him from working with any other company. The court granted the companies a preliminary injunction, noting that although it wouldn’t normally do so, Garcia had agreed to injunctive relief in a boilerplate provision stuck at the end of his contract.

Once again, it’s clear that contract law and feminism offer very different perspectives on the case. Contract law presumes that Garcia was represented by his parents and that, together, the three of them could take care of themselves. In fact, the court’s opinion is incredibly insensitive to the allegations of abuse, mentioning them only once at the beginning and then treating the case as if it were an ordinary contracts case.

Feminism, on the other hand, would focus on Garcia’s vulnerability as a young gay boy trying to make it in a notoriously macho culture, and on the potential for abuse that could create. At the very least, a feminist would use a different tone in writing the opinion.

As with Kesha’s case, Garcia’s litigation dragged on for a couple of years—at which point WWE sold Garcia’s contract to Warner Brothers, no doubt to settle the matter.

This may be the result Kesha is hoping for in her case. There is one key difference between Garcia’s case and Kesha’s, however. In Garcia’s case, he sued on two bases: sexual abuse, and breach of contract. Kesha’s case, however, nowhere alleges a breach of contract.

Which leads us to the fifth lesson:

Lesson #5: This isn’t really a contracts case.

Kesha’s case is actually a tort case. Kesha is suing for what is called tortious conduct, that is, conduct that violates her personal rights. This includes assault and battery, sexual harassment, and the infliction of emotional distress.

Even though Kesha’s attorney has framed the case as one for tortious conduct, he’s arguing that the court should void Kesha’s contracts with companies tangled up with Gottwald. These contracts involve more than recording: they also cover promotion, merchandising, and more.

But the court, in essence, found that this remedy is too broad. The judge ruled that since the alleged abuse occurred while Kesha was recording, and since Gottwald wouldn’t be involved anymore during that stage, the problem of any future abuse is solved.

The judge never considered whether sexual abuse violates good faith and breaches Kesha’s contracts, because no one asked her to. In law, a court is only bound to consider the case as the parties frame it, and Kesha’s case is framed as a tort case.

If the dispute had been framed as a contract case, would the judge have ruled differently? The judge wouldn’t be able to say that voiding the contracts was “too broad” a remedy because the suit would be about the contracts and not about the abuse on its own. But it probably wouldn’t matter.

The underlying problem is that a court is unlikely to “free” Kesha from her contracts without first having a trial that establishes her claims of abuse are true, and that the companies knew about it. Yet sexual assault is famously difficult to prove in court.

And this points to a problem that affects women around the world as they move into the world of commerce and contracts long dominated by men. Contract law prides itself on using neutral, one-size-fits-all principles. But issues of sexual abuse are not one-size-fits-all problems. They disproportionately affect women, children and members of the LGBT community. A contract brings two sides together in a relationship. But contract law does little to protect the more vulnerable side in that relationship from abuse.