After The New York Times and The New Yorker exposed years of alleged sexual harassment and assault by Hollywood producer Harvey Weinstein, the floodgates have been opened across the economy. Allegations have overwhelmed influential figures in industries as diverse as art, food, media, sports and technology. Powerful men who had for decades preyed on women without rebuke are being toppled from their positions of influence.
Now that these men, whose abuses had been “open secrets” for decades, are finally facing repercussions, important questions remain. How were their acts kept secret for so long? And how were they allowed to continue victimizing women over and over again? A huge piece of the answer lies in the methods companies have increasingly deployed to protect these men from public scrutiny. Complaints of abuse have been tidily swept under the rug through non-disparagement agreements that keep victims quiet and contract clauses that push them into private arbitration and away from court.
If we want to change a culture of impunity for sexual harassers, we can end both of these practices right now. Until we do, harassers will be able to silence their victims, companies will avoid public backlash, and the abuse will continue.
Weinstein deployed non-disclosure agreements against many of his victims. The New York Times reported that he reached at least eight settlements with women over the years, and one common feature seems to have been a requirement that they not speak to anyone about what happened. An agreement signed by one of his former assistants, Zelda Perkins, even made her give Weinstein’s lawyers advance notice if she was required to say anything in a criminal legal process and to “limit the scope of the disclosure as far as possible.”
The same strategy was used by former Fox News host Bill O’Reilly, who also settled with a number of women alleging sexual harassment, but required their silence in return for the sums of money he and Fox gave them.
But employers aren’t necessarily waiting for accusations to surface before requiring employees to abide by a code of silence. Many include non-disclosure or confidentiality agreements in employment contracts upfront. The Weinstein Company required employees to sign NDAs just to work there. Google, Facebook and LinkedIn go so far as to make anyone who enters their offices sign an NDA.
These clauses are, in theory, meant to protect company secrets from being stolen by competitors or leaked to the press. But they can also strangle outcry about abuses, given that some prohibit saying “disparaging” things about a company. While employers can’t legally ban workers from bringing harassment or discrimination charges against them, they can still make employees sign off on language that could make them feel powerless to speak out.
Even more widespread, however, is the use of forced arbitration clauses. These requirements, often buried deep into the fine print of employment agreements, block an employee from bringing a lawsuit over harassment or discrimination in a public court. Instead, she must go through a private arbitration process where the person making the decision is often handpicked by the employer. According to the Economic Policy Institute, more than half of all private sector employers now include mandatory arbitration in their contracts, covering 56 percent of the workforce. That share has more than doubled since the early 2000s. Companies as varied as Goldman Sachs, P.F. Chang’s and Uber use them.
While workers who are subject to these agreements can still bring legal action if they’re harassed, they face incredibly long odds in securing any victory, as they are much less likely to win relief than if they bring cases to court. Employees who brought discrimination claims through arbitration were only successful 21 percent of the time, compared to a win rate of 50 to 60 percent in court. Given that sexual harassment victims already face a strong likelihood of being retaliated against for speaking up, it may be one more reason to keep silent.
And even if an employee does go through arbitration over a claim of harassment and win, the public will likely never know. Everything that happens in arbitration tends to be kept private. There are no opening statements or the press stories that accompany a jury trial. So, an employer can rest assured that there will be no headlines and therefore no public pressure to make any changes, while a perpetrator knows that future victims won’t be forewarned about his record of behavior.
These tactics can be stopped, however. New York state lawmakers are working on legislation that would void any contract provision that requires confidentiality about sexual harassment or discrimination, including any claim that gets settled in an arbitration process. The same idea is being taken up in New Jersey and California; the latter has already banned confidentiality agreements for harassment when it involves a potential felony.
Even in the absence of legislation, however, there’s an argument to be made that contracts that force employees to keep quiet about abuses shouldn’t be upheld in a court of law. As Anna Lind-Guzik, a lawyer and writer, argued at the Daily Beast, there is “a public interest in exposing sexual abuse and gender discrimination.” So just as whistleblowers are protected from retaliation when they speak out, so should victims be protected when they break NDAs. “Contracts to conceal a crime are supposed to be unenforceable,” she notes. “Courts have the power in civil cases to void confidentiality agreements where disclosure is in the public interest, and have done so in matters of environmental safety, public health and product safety.”
There’s also plenty of room for change when it comes to arbitration. Former President Barack Obama signed an executive order in 2014 that banned forced arbitration clauses in new employment contracts for large companies that contract with the federal government, an order that could eventually cover the 28 million people who work for federal contractors. Congress could pass its own law doing the same thing for all employers throughout the country. It’s unlikely in this Congress, however, given that Republicans in the Senate just voted to undo a Consumer Financial Protection Bureau rule banning forced arbitration in consumer agreements.
In lieu of congressional action, states could take a page from California, which has a law that allows individual people to bring lawsuits on behalf of the government. Because they act as “private attorneys general,” they’re not subject to forced arbitration -- the state can’t be ruled by such an agreement. Advocates are now trying to get other states to do the same, opening the door for a workaround.
None of this will eradicate sexual harassment. It’s far too widespread and ingrained to be solved with a quick fix. These changes wouldn’t even necessarily make it easy to report harassment -- women face plenty of other barriers, including retaliation, being blacklisted and watching their reputations dragged through the dirt. But taking away NDAs and forced arbitration would deprive predators of the means by which they keep their behavior secret. That allows women to speak publicly about what they experience, and to hold their abusers and their employers accountable.