Before filing a lawsuit, many people are surprised to find that a clause buried deep in their employment contracts forbids them from bringing claims against their employer in open court and instead sends them into the secret chamber of arbitration. By 2024, 82 percent of all American workers will be bound by forced arbitration, mandating that they resolve their workplace claims secretly through a process that disproportionately benefits predators at the expense of survivors.
More than one-third of all workers are bound by NDAs, which also prevent them from speaking up about toxicity on the job. Like us, many people sign these gag orders on the first day of work, thinking that they are only precluded from disclosing proprietary information like trade secrets—only to find that they cannot disclose anything they witnessed or warn others about dangers they may face. Others sign away their right to speak when they receive a promotion, severance, or settlement. Often, departing employees are told to sign an NDA in order to receive a letter of recommendation.
We found, and still find, this to be unacceptable.
After we were free from the abuse we endured, we could have gone home and moved on—but anyone who knows us will understand that’s not how we operate. In the wake of our own highly publicized stories, thousands of women and men began to reach out to us to share their own horror stories of being silenced at work, from C-suite executives to hourly wage workers to volunteers. We began to understand how truly pervasive the silencing of American workers has become, and it is why we created our nonprofit Lift Our Voices.
A staggering 60 percent of U.S. workers have experienced or witnessed workplace discrimination, and 40 percent have reported facing retaliation after speaking up. Too often, employees who report abuse are vilified as “snitches” or branded as being disloyal. They are accused of rocking the boat and ultimately pushed out, simply for demanding a more respectful workplace. On their way out the door, they are told to sign an NDA that prevents them from ever disclosing to a prospective employer the true reason for their departure. Faced with these challenges, it is no surprise that most workers find it easier and safer to stay silent.
Our challenges in shifting this paradigm are both legal and cultural. This is why we have dedicated years to chipping away at both federal and state laws that cover up workplace toxicity and protect predators at the expense of survivors. While we understood that on-the-job abuse affects all kinds of employees, we also understood that incremental change is a pathway to success. That is why our first mission was to eradicate forced arbitration for survivors of sexual misconduct, which disproportionately impacts women and people of color.
When survivors work up the courage to speak out about their experiences of sexual harassment or sexual assault in the workplace, they are often forced into secrecy with an arbitrator. This arbitrator, typically a white male who looks nothing like the survivor whose case he is adjudicating, is usually selected by the company where the worker experienced the misconduct. Under these circumstances, it is no surprise that survivors throw up their hands and simply give up—and who can blame them? Fewer than 2 percent of all employee arbitration cases result in any kind of financial compensation for the survivor.
But even those who choose not to arbitrate their cases are harmed simply because they had the misfortune to be abused. One in eight survivors was denied a promotion, one in 12 were demoted or lost work responsibilities, and more than one in seven were threatened, either with legal action or with job loss if they told anyone about their experience.