Mandatory NDAs silence women in the workplace and empower abusers. Here's why.
How NDAs Harm Working Women
Changing Companies, Changing Laws & Policy, Corporate Policy, Equity, Power, Safety, TIME'S UP 2020
Non-disclosure agreements (NDAs) took center stage on the Democratic presidential debate stage, resulting in Mayor Mike Bloomberg agreeing to release three women from nondisclosure agreements and announcing that Bloomberg LP will no longer use them to resolve claims of sexual harassment or misconduct. Three days later, Harvey Weinstein, the man who infamously used nondisclosure agreements to silence women, was found guilty by a jury of a criminal sex act in the first degree and of rape in the third degree.
With the spotlight shining on NDAs and their harm to working women, here’s what you need to know.
What are NDAs and how do they harm workers?
Here are the fast facts:
- NDAs are contractual provisions that impose confidentiality on the parties who sign them.
- Once used primarily in trade secret law, NDAs have become routine business practice.
- Data reveal that over one-third of the U.S. workforce is bound by an NDA.
Unfortunately, as the #MeToo movement revealed, serial predators and harassers used NDAs to silence victims from speaking up about sexual assault, harassment, or discrimination.
However, this is beginning to change. Companies and federal and state lawmakers are stepping up.
What NDA reform is already happening?
Thanks to brave survivors breaking their NDAs and speaking out at great personal risk, policies and laws are changing.
Thirteen states enacted laws limiting or prohibiting employers from requiring employees to sign NDAs as a condition of employment. Several states–including New York, Oregon, California, Nevada, and Illinois–have enacted legislation to limit NDAs in settlement agreements for harassment, discrimination, or retaliation claims, permitting them only in circumstances in which the employee affirmatively requests one or is given a reasonable time period in which to consider such an agreement.
While change on the state level is positive, companies need not – and should not – wait for laws to change to start making policy changes right at home. Companies, including Uber and Condé Nast, have stopped using NDAs for sexual assault or harassment claims.
Despite these important advances, NDAs still continue to hold too many women back from working with safety, fairness, and dignity. With no uniform workplace standard, women in some states are bound by NDAs for sexual assault, harassment, or discrimination, while women in other states can rightfully have their voices heard.
What change still needs to happen?
The bottom line: mandatory NDAs are categorically wrong because they silence women from reporting harassment, abuse, or discrimination.
NDAs for harassment, discrimination, assault, or retaliation as a condition of employment should be prohibited in employment contracts and limited in settlement agreements. The federal BE HEARD Act would make these changes on a national level and create the uniform workplace standard that we need. In the meantime, states across the country should adopt these changes so that women have the equal opportunity in the workplace that they deserve.
Importantly, NDAs are not inherently harmful to survivors. While NDAs should not be a mandatory condition of employment, survivors sometimes desire confidentiality to avoid making public their experiences of traumatic abuse or harassment. We need to listen to survivors and give them the option to enter into voluntary NDAs in settlement agreements, which can give survivors more leverage over employers in settling claims.
However, to avoid abuse of power, public policy should ensure that use of NDAs in settlement agreements is limited.
Having the option to speak out about injustice or abuse at work is central to safe, fair, and dignified work for women. Simply put, survivors deserve to be heard if they want to raise their voice.