Ending non-disclosure agreements that enforce silence on dangerous workplace conditions
In March, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. It was a rare piece of major legislation that passed the Senate unanimously, signaling broad bipartisan support for protecting survivors of workplace abuse.
Thanks to this truly historic moment of solidarity, survivors will no longer be trapped in the secretive confines of forced arbitration, a system that disproportionately favors employers and protects predators.
Yet despite this important step forward, there are still laws on the books designed to prevent survivors from exposing their abusers. Non-disclosure agreements (NDAs) that enforce silence on dangerous workplace conditions promote an unacceptable power imbalance between predators and their enablers on the one hand, and those who demand respect in the workplace on the other.
Who would support preventing a woman from disclosing that she was sexually harassed by her boss and from confiding in her co-workers about it? Who would support allowing lawyers to intimidate survivors and prevent them from providing information that could help a sexual assault survivor receive justice, simply because they signed an NDA on the first day of work? Only someone with a vested interest in maintaining the disturbing—and at times dangerous—status quo.
Advocates and non-profit organizations have been fighting for years to promote policies that allow workers to speak out about toxicity on the job. Lift Our Voices, spearheaded by Gretchen Carlson and Julie Roginsky, was the driving force behind the law to eradicate forced arbitration for sexual misconduct. Today, we are working with them once more to give voice to survivors who wish to speak freely about traumatic workplace experiences.
The Speak Out Act, recently introduced in both the Senate and the House of Representatives, would forbid the use of NDAs to silence survivors of sexual harassment and assault as well as those who witness behavior that leads to sexual misconduct. This law will finally give voice to those who experience or witness some of the most toxic behavior imaginable but who are currently prohibited from disclosing these traumatic incidents to colleagues, friends, or even loved ones.
More than one-third of all American workers are bound by NDAs. Sometimes, these confidentiality provisions are useful, like when they prevent workers from disclosing trade secrets or exploiting proprietary information.
Workplace abuse, however, should never be kept secret. Those who experience it or witness it should be able to discuss it. No one should be prevented from telling her own story, especially when enforced silence so often leads to a culture of toxicity that protects predators and their enablers at the expense of survivors.
Sharing these stories can be painful, and those who experience trauma might not wish to come forward at first. But should they make the choice to speak up, nothing should prevent them from disclosing what happened.
We know that workplace toxicity has been a leading cause of recent worker resignations. Yet a worker bound by an NDA cannot disclose to a prospective employer what truly happened at her last job. Her choice is either to refuse to discuss the true circumstances of her departure or to lie. As a result, these survivors are often driven not just from their jobs but from their chosen careers.
Abusive workplaces do more than just harm the employees who survive them. They drive women out of the workforce. They destroy company morale. They empower predators who use this enforced silence to victimize co-workers with impunity, secure in the knowledge that their behavior will never come to light.
To protect our nation’s hardworking women and men from toxic, abusive work environments, we must give them the ability to speak honestly about their experiences. We believe that based on the historic bipartisan support for our landmark arbitration law we will also find broad consensus in Congress to ban NDAs covering workplace sexual assault and harassment.
So let’s get it done now, for the benefit of all American workers.
Gillibrand is the junior senator from New York and Marsha Blackburn is the senior senator from Tennessee.
BY SENS. KIRSTEN GILLIBRAND (D-N.Y.) AND MARSHA BLACKBURN (R-TENN.), OPINION CONTRIBUTORS - 09/20/22 6:00 PM ET