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February 13, 2024 Best of ABA Sections

Nondisclosure Agreements Perpetuating Workplace Toxicity

Gretchen Carlson and Julie Roginsky

Both of us are survivors of workplace misconduct and have experienced firsthand the stifling effects of silencing mechanisms that seek to cover up egregious examples of workplace toxicity. For Gretchen, it was combatting sexual harassment as an anchor at Fox News. For Julie, it was waging a long battle against New Jersey Governor Phil Murphy’s attempts to silence her about the rampant misogyny she witnessed in his political organization. The trauma was further compounded because we were compelled to remain silent about the pain we endured. Each of us signed a nondisclosure agreement (NDA) on the first day of work that prevented us from ever disclosing to anyone else what we were experiencing. These agreements continued the cycle of subjugation long after we were forced from our jobs. We both were fired for standing up against workplace toxicity, and then, because of NDAs, we were prevented from speaking out about our own experiences. It is a situation that millions of Americans face. As difficult as it was to endure toxic behavior, being told to remain silent about it in perpetuity is even worse.

NDAs and Forced Arbitration

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. NDAs also prevent workers 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 such as trade secrets—only to find that they cannot disclose anything they witnessed or warn others about dangers they may face. 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.

Harassment and the Culture of Silence

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. 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 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 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.

The Fight for Legislative Relief

In 2022, the bill we fought for—the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act—passed with broad bipartisan support. This law gives survivors of sexual assault or harassment the right to file their cases in open court rather than to be forced into the secret chamber of arbitration. It does not prohibit arbitration; rather, it gives survivors of sexual misconduct the option to reject arbitration if they would rather file a lawsuit.

The day President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, we began work to prohibit NDAs for sexual misconduct claims. In 2023, we gathered support from legislators on both sides of the aisle to pass the Speak Out Act, which prohibits the use of pre-dispute NDAs in cases of workplace sexual harassment and assault. In June 2023, we launched our latest effort to combat discrimination in the workplace by introducing the Protecting Older Americans Act, which would ban forced arbitration for older workers who are sidelined because of age. A month earlier, Senator Cory Booker (D-NJ) introduced the Ending Forced Arbitration of Race Discrimination Act of 2023, which expands on our law by banning forced arbitration for survivors of workplace racial discrimination. We have also worked at the state level to ban NDAs for all toxic workplace issues. In 2022, Washington followed in the footsteps of New Jersey and California to become the third state in the nation to ban NDAs for all workplace human rights violations. In 2023, we introduced similar legislation in New York to ensure that all workers facing abuse can be free to speak out about toxicity.

The Need for Change in Corporate Culture

While these laws have gone a long way toward allowing workers to speak out about their experiences, organizations do not need legislation to change their policies. Employers, their general counsels, and human resources officers can take the initiative to protect survivors instead of predators. As data has repeatedly shown, companies do better when they maintain a diverse workforce, and yet, too many female workers and workers of color are currently being driven from their jobs because silencing mechanisms empower toxic behavior.

The last seven years have brought a cultural shift that has irrevocably changed the American workplace. We have come far, but we have a long way to go in ensuring that every single one of us can go to work with the dignity that every worker should be accorded.

ABA SECTION OF CIVIL RIGHTS AND SOCIAL JUSTICE

This article is an abridged and edited version of one that originally appeared on page 4 of Human Rights, October 2023 (49:1/2).

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Gretchen Carlson

Lift Our Voices

Gretchen Carlson is a journalist, best-selling author, and co-founder of the nonprofit Lift Our Voices.

Julie Roginsky

Lift Our Voices

Julie Roginsky is a public affairs executive and co-founder of Lift Our Voices.