Door opens for justice for victims of workplace assault, harassment
With a landmark #MeToo victory, we're just getting started. So much more needs to change.
Amid the many challenges of the past several weeks, a new law has provided reason for hope. It signifies long-overdue protection for millions of workers who have been prevented from seeking justice while facing workplace assault and harassment.
The Ending Forced Arbitration for Sexual Assault and Sexual Harassment Act is the culmination of years of advocacy on behalf of survivors. It is a landmark moment of the #MeToo era and one of the most significant changes to federal labor law in decades. It is a shining example of leaders in both parties working together to protect American workers.
Before this law's passage, millions of American workers who had been sexually assaulted and harassed at work had no choice but to arbitrate their claims out of sight. Forced arbitration is a secret chamber, a deck stacked like a mountain against survivors. No wonder so few workers, facing the insurmountable odds, even bother to arbitrate their claims.
Today, workers who have been sexually harassed or assaulted can finally have their day in court.
But even as we celebrate this groundbreaking law, the fight is far from over. This is just the first step in our mission to ensure that all those who have faced workplace toxicity are afforded the right to seek justice.
Employers are still able to force survivors into arbitration for claims other than sexual assault and harassment. Simply put, there should not be two unequal paths to justice — one for those who are covered by this legislation and one for those who face toxicity because of the color of their skin, their gender, their sexual orientation, their disability or their age. Our mission will continue until every worker has the same opportunity to remedy injustice.
Nondisclosure agreements, or NDAs, are all too commonly used to prevent workers from ever speaking out about workplace toxicity. We understand this process all too well. Though we sued Fox News and its former Chairman Roger Ailes for sexual harassment and retaliation, NDAs prevent us from ever speaking out about our own experiences. Many others have purported to tell our stories in articles and in film, but we do not have the right to our own stories. And in what may be the worst consequence of all, we are not permitted to warn our former colleagues about abusers and their enablers who may still work at the network.
We are not alone. The psychological and professional toll of these concealment clauses affects millions of workers who are bound to perpetual silence either as a condition of employment or settlement. They are not designed to protect trade secrets or other proprietary information but to protect predators at the expense of survivors. That is why we were so heartened to join President Joe Biden at the White House recently as he committed to eradicating NDAs for toxic workplace issues.
We hope that in the wake of bipartisan congressional efforts to end forced arbitration for sexual harassment and assault, members of both parties will continue to work together to ban other provisions that protect predators at the expense of survivors, such as forced arbitration, NDAs and other concealment clauses.
This new law is a victory, but it is only the beginning of what is possible. All workers must be guaranteed the right to share their own stories truthfully, without fear of legal consequences or professional retaliation. American workplaces must reflect the values they espouse. There is much more work to do.
Gretchen Carlson and Julie Roginsky are the co-founders of Lift Our Voices, a national nonprofit dedicated to eradicating silencing provisions including forced arbitration and NDAs for toxic workplace issues such as discrimination, sexual assault and harassment.
BY GRETCHEN CARLSON AND JULIE ROGINSKY, APRIL 3, 2022 — 6:00PM