New Bill Aims To Ban NDAs For Victims Of Workplace Harassment

Originally published by The 19th

Mariel Padilla

House lawmakers on Wednesday introduced the Speak Out Act, a bipartisan bill that aims to stop employers from forcing workers to remain silent about current and future instances of sexual harassment and assault in the workplace — as a requirement for employment. A companion bill will be introduced in the Senate by Democratic Sens. Kirsten Gilibrand, Marsha Blackburn and Mazie Hirono and Republican Sen. Lindsey Graham.

Nondisclosure agreements in the workplace keep harassment victims from talking publicly about their abuse. More than one-third of the U.S. workforce is bound by NDAs, according to a 2018 Harvard Business Review article, and they are rarely highlighted in a torrent of new employment paperwork. This quiet prevalence can lead people to unknowingly sign over their rights to talk about any harm done to them in the workplace or even when they accept terms and conditions after downloading a new app on their phones. One law professor described them as tools used to purchase victims’ silence.

Rep. Lois Frankel, a Democrat representing Florida who introduced the legislation, sees the removal of these clauses as a way to address workplace harassment and violence, a subject she has been working on for several years.

“It’s going to make workplaces much more welcoming to everyone — safer, more productive and more advancement, especially for women,” she told The 19th.

Republican Rep. Ken Buck, the Colorado Republican who cosponsored the measure, said it was important to give people a choice, be it suing or pursuing arbitration. It is time to end “the secretive practices that enable sexual predators while keeping victims in the shadows,” he said in a statement to The 19th.

Frankel said that with support on both sides of the aisle, she is optimistic that the bill will pass in the House. She was also encouraged by Rep. Cheri Bustos’ success earlier this year in passing a ban on mandatory arbitration in sexual harassment and assault cases — calling it a “breakthrough” and a “big step forward.” Now, when sexual assault and harassment claims are brought forward, workers and consumers can go to court and face judges and juries instead of private arbitrators, who are often chosen by employers. Arbitration agreements prevent harassment allegations from reaching the courtroom, while nondisclosure agreements in the workplace keep harassment allegations from reaching the public.

Gretchen Carlson and Julie Roginsky, former Fox News employees and co-founders of Lift Our Voices, an advocacy group working to end forced arbitration and NDAs, said they had been working closely with legislators to get both bills passed in Congress. Both Carlson and Roginsky filed lawsuits against Roger Ailes, the late television executive and media mogul in 2016 and 2017, respectively, alleging sexual harassment — though Carlson could not sue Fox News because of an arbitration clause and Roginsky still cannot speak about the details of her assault because of an NDA.

“If we had not been forced to sign NDAs upon employment, we would have been able to warn other people at Fox News about the behavior that was going on,” Carlson told The 19th. “But the reason they make you sign these things is because they want you to feel alone and like you’re crazy because you don’t know that other people are going through the same thing.”

When Carlson filed her lawsuit, Roginsky said she was still working at Fox News and her first thought was: “Oh, so it wasn’t just me.”

According to a 2018 Pew Research Center survey of 6,251 adults, about 6 out of 10 women said they had “received unwanted sexual advances or experienced sexual harassment.” Of these women, about 70 percent said they experienced this harassment in a professional or work setting.

Frankel said she has known this was an urgent problem since she co-chaired the Congressional Women’s Caucus alongside Republican Rep. Susan Brooks in 2016. At that time, she heard from women in “every kind of workplace”: Waitresses reported getting pinched while working. Hotel maids described wearing panic buttons to escape assault. Farm workers said they were raped in tomato fields. A welder quit her job after being called vulgar names. One woman working in Silicon Valley claimed she was told to include “more attractive photos of herself in presentations,” Frankel said.

“It’s not just a statistic,” Frankel said, pointing to the real-world consequences that workplace harassment has on victims. “What we learned from our hearings is that there’s different degrees of it, but it’s so degrading and so intimidating and so humiliating. And there are many consequences: Many times people drop out of work or they don’t stand up for a promotion or their work suffers and it keeps them from promotions and earning more money.”

Imre Szalai, a social justice professor at Loyola University New Orleans, said Bustos’ recent amendment to arbitration law — which Frankel is hoping to build on — was the “most significant” since the federal arbitration law was first enacted in 1925. However, he added, without ending NDAs as well, the move falls short of truly protecting vulnerable workers.

Szalai, who has written a book about the development of arbitration laws and presented written testimony to Congress regarding the topic, said that arbitration agreements and NDAs followed a similar trajectory in American history. Both were developed for commercial purposes to handle business-to-business disputes in a way that was more convenient for both parties: speedy, cost-effective and maintained confidentiality. Merchants in New York, for example, had a robust arbitration system even before the Revolutionary War. But sometime between the 1970s and 1990s, there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships.

No other country in the world uses arbitration as expansively as we do, Szalai added.

“How a society resolves disputes can reveal the values of that society,” Szalai said. “Over the last few decades, the Supreme Court and Congress has allowed corporate America to control dispute resolution and in effect block access to the public courts. Profits and commerce over people.”

Anne Douds, the department chair and associate professor of public policy at Gettysburg College, said forcing employees to promise up front that they won’t discuss “any future, hypothetical sexual harassment or abuse” seems “fairly insane.”

For one, Douds argued, the arrangement implies that the company anticipates nefarious activity might occur. The policy also revictimizes those who experienced harassment or assault, who are more likely to be women and less financially secure, by forcing their silence.

Still, experts see limitations to the bill. Keith Cunningham-Parmeter, the Willamette University law professor who views NDAs as silencing tools, said it is important to note that this new bill would not necessarily prevent employers from offering cash to silence plaintiffs who come forward with allegations of workplace mistreatment, which was a major problem highlighted by the #MeToo movement.

A more comprehensive ban would be necessary to stop employers from buying their victims’ silence, Cunningham-Parmeter added, but this new bill would still “constitute a significant legal victory that #MeToo advocates could justifiably claim” and strengthen the movement’s staying power, both as a “cultural and legal matter.”

The recent amendment to arbitration law and the newly introduced Speak Out Act are game changers for sexual assault and harassment survivors, Roginsky said.

“It will impact thousands, if not hundreds of thousands, if not millions, of survivors,” Roginsky said. “We can’t sweep bad behavior under the rug, and we need to ensure that those who go to work are able to work with dignity and respect — not subsumed by a culture of silence that precludes them from discussing a workplace toxicity that has no place in any office or workplace in America.”

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